I dissent.
I think that the judgment below should be modified, without costs, by providing that the complaint in the consolidated action be dismissed, on the ground that the action has become moot. Three and one-half years ago, in November, 1945, Mutual Life Insurance Company, the building owner, notified its tenants that they were required to vacate not later than January 31, 1946, because the owner had rented the entire parcel of land to Manufacturers Trust Company, for a term beginning February 1, 1946, and because it (Mutual) desired to give possession to such lessee and because the building in which these tenants were located was "to be demolished immediately after January 31, 1946 and is to be replaced by a new building." The tenants refused to move, but brought suit for declaratory judgment; the landlord then brought eviction proceedings against all the tenants, and the action and proceedings were consolidated, and the consolidated cause, which we have before us on this appeal, is still pending. In October, 1948, as *Page 264 appears without dispute from statements made to us in the briefs on this case and in oral argument, Manufacturers Trust Company, proposed tenant of the new building, notified Mutual Life Insurance Company, that, by reason of the long delays, Manufacturers Trust Company considered that the agreement between the owner and Manufacturers Trust Company made in 1944, had been terminated; Manufacturers demanded the return of its $100,000 deposit and notified the owner that Manufacturers would claim damages. In November, 1948, Manufacturers brought suit against the owner for the return of its deposit and for damages, which suit is pending. The Business Rent Control Law of this State, forbidding the eviction of tenants during the emergency, makes an exception in a case where the landlord in good faith wants his property back to demolish the present building and erect a new one. When this case was tried below and argued in the Appellate Division, it appeared that the landlord was, on the facts, entitled to possession under that exception. However, it is now evident that the proposed tenant for the new building is refusing to perform, and that the proposed new building is not going to be erected for a long time, if ever. Under these circumstances, I think it would be wrong to order these tenants evicted on the basis of a state of facts which has changed so materially, and to compel their removal because of the proposed erection of a new building, construction of which seemed imminent several years ago, but the construction of which is now at least doubtful.
At the very least, there should be a new trial of the facts as they now are, not as they were in 1946.
LOUGHRAN, Ch. J., CONWAY, DYE, FULD and BROMLEY, JJ., concur with LEWIS, J.; DESMOND, J., dissents in opinion.
Judgments reversed, etc. *Page 265