majority"> Daly, J.

Application, pursuant to article 78 of the Civil,Practice Act, for an order 6 * compelling the respondents to" issue :a Certificate of Eviction.” ‘ ' ' ; '

Petitioners are the owners of a" six-family dwelling iri Astoria. In order to obtain an apartment "for their own usé, they applied to the respondents for a certificate permitting the eviction' ’of a tenant named Hammond. Respondents’ hearing officer found that petitioners showed compelling necessity, but' they dénied the application on the ground that pétitionerS1 were “ hot proceeding in accordance with Local Law 84.’”: " ' :’;"

Hew York City Local Law Ho. 84 of 1948 provides that where a landlord, because of compelling necessity," seeks to" recover possession of an apartment for his own immediate and personal use and occupancy as dwelling accommodations ■ iri a'btiilding containing more than one apartment “ the commission Shall first determine which of such apartments aré "suitable arid'adequate for the needs of such landlord and the certificate -of; - eviction issued shall authorize the eviction Ónly of the tenant occupying the apartment thus determined to be suitable and adequate which has the smallest number of occupants ”.

In compliance with said law the commission madean investigation which revealed that all of the apartments were comparable in accommodations, each consisting of two bedrooms",‘ a living room, kitchen and bath. The investigation further revealed that three of the apartments contained fewer occupants than. Hammond’s, two of them having four occupants and one having, only three. Hammond’s apartment is .occupied by, five, people. Accordingly, the commission denied petitioners’ application, for a certificate to evict Hammond, but did not issue a certificate for the apartment having the fewest occupants." ‘;

This matter is referred back to the respondent commission for a rehearing on notice to the tenant of the apartment having the fewest occupants.

Settle order on notice.

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