(dissenting). The statute in question, passed for the stabilization of commercial rents (L. 1945, ch. 3, as amd.), defines “ commercial space ” as space “ used or occupied ” for commercial purposes (L. 1947, ch. 822, § 2, subd. [a]). The definition of “ commercial purposes ” (§ 2, subd. [b]) refers to the manufacture and resale, the processing and displaying of personal property, etc., but does not include subletting of space not actually occupied by the tenant. “ Rent ” is defined as the consideration charged for the “ use or occupancy ” of commercial space. After termination of the main tenant’s lease, the main tenant is no longer using or occupying for commercial purposes the part of the space such tenant wishes to continue to sublet as landlord against the will of the owner.
The basic purpose of the emergency rent legislation was to protect tenants in possession and prevent widespread evictions while the emergency lasted. The statutory language should be interpreted to effectuate that purpose. It was to protect tenants as tenants and not as landlords. Only such right of ownership is suspended as is necessary to meet the emergency purposes of the act. In continuing to act as landlord after his main lease has expired, the tenant is not seeking protection of his possession of space 0 actually occupied by him for commercial purposes, but is seeking to perpetuate profits from subtenants derived from the owner’s investment in the real estate. Accordingly, at least in a case such as this in which the owner of the premises is willing to accept *602the subtenants, we may say, as we did in Gross v. Libby Properties, Inc. (273 App. Div. 851) that there is a “ lack of equity ” in the tenant’s position. In WMCA, Inc., v. Blockfront Realty Corp. (272 App. Div. 800) this court held that the emergency rent laws were not enacted for the benefit of persons merely in constructive possession of rental space in commercial buildings. The main tenant herein is obviously not in actual possession, for commercial purposes as defined by the act, of the part of the premises he seeks to continue to sublet.
While there are difficulties involved in working out the relationship, such difficulties should not be made the basis of thwarting the dominant purpose of the act. It is not impossible to calculate the emergency rent for the portions retained by the main tenant or the subtenants, neither of whom is disturbed in possession by the orders and judgments appealed from (cf. L. 1947, ch. 822, §§ 3, 4, 6, 7). As this landlord does not presently seek to remove the subtenant or the main tenant from possession of the part of the premises actually occupied, but is willing to accept them as tenants, subdivision (e) of section 8 containing the provisions for renewal of leases on terms substantially similar to the prior lease, would not appear to be presently applicable. That section is entitled “ Grounds for removal of tenant from possession.”
On the facts "presented in this record, the main tenants after expiration of the over-lease retain no rights as landlords against the subtenants or the owner with respect to such part of the space as they do not actually occupy for commercial purposes and cannot compel such subtenants to deal with them rather than the owner; the owner’s right to deal with the occupants is not suspended.
Accordingly, I dissent and vote to affirm the orders and judgments appealed from.
Glennon, J. P., Callahan and Shientag, JJ., concur with Cohn, J.; Dore, J., dissents and votes to affirm in opinion.
It is hereby ordered and adjudged that the judgments and orders so appealed from be and the same are hereby reversed, with costs to the appellants, and judgment on the pleadings directed in favor of the defendants-appellants in each action declaring (1) that the defendant subtenant holds over in possession of his premises as statutory tenant of the defendant main tenant and is required to pay rent to the latter and (2) that in each case the defendant main tenant holds over in possession of the entire leased premises as a statutory tenant of plaintiff.