(dissenting). In my opinion the question of whether a tenancy is entitled to the protection of the emergency rent laws does not depend upon whether the particular tenant in fact had the power to bargain freely or that his rent was actually oppressive, but upon whether such tenancy comes within the definitive provisions of the law. Section 1 of the statute sets forth the basis for the legislative declaration of the existence of an emergency. The emergency having been found to exist, the Legislature provided that the statutory right of summary dispossess should not be available as against any tenant in actual possession of business space of specified classes. This tenant occupied space of one of the classes specified.
Section 8 of the statute provides, in substance, that so long as a tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any business space by action or proceeding to evict or recover possession notwithstanding that said tenant’s lease has expired or otherwise terminated, and regardless of any contract, agreement or obligation inconsistent with any provisions of the act. The section enumerates certain exceptions. Coneededly, the petition in this proceeding fails to state that the present tenancy comes within any of the enumerated exceptions. Any waiver of the protection afforded by the law is expressly made unenforcible and void by section 12 of the statute.
In view of the foregoing statutory provisions the petition is insufficient in law and the determination appealed from would seem proper.
The denial to the landlord of the statutory right of summary eviction would not mean that if a fraud has been committed by the tenant, the landlord may not have other remedies based on such fraud.
In Messinger v. Great Hudson Fur Co., Inc. (270 App. Div. 168) a mere license was involved. In WMCA, Inc., v. Blockfront Realty Corp. (272 App. Div. 800, motion for leave to appeal denied, 297 N. Y. 1042) the so-called tenant was not in actual possession of any business space. In Cleaners Holding Corp. v. Trunz, Inc. (272 App. Div. 825) the tenant had vacated the premises pursuant to notice, and it was held that under such *288circumstances he might not recover the damages provided for tenants improperly evicted.
I, therefore, dissent and' vote to affirm the determination of the Appellate Term.
Peck, P. J., and Van Voorhis, J., concur with Cohn, J.; Callahan, J., dissents in opinion in which Dore, J., concurs.
Determination of the Appellate Term and final order of the Municipal Court reversed, and motion to dismiss petition denied, with costs to the landlord-appellant in all courts. Settle order on notice.