(dissenting). In each of two summary proceedings, the tenant in possession, by leave of Appellate Term, appeals from determination of Appellate Term affirming by a divided court final orders of the Municipal Court dispossessing the tenant after expiration of leases. The proceedings were brought purportedly under the 1950 amendment to the Commercial Bent *134Law (§8, subd. [d], par. [2], as added by L. 1950, ch. 327, eff. March 31, 1950).
In my opinion this petitioner is not a “ lessee ” within the intent of new paragraph (2) of subdivision (d) of section 8. That amendment grants an exception to the general rule and such exception must be strictly complied with before it will be enforced to dispossess a tenant protected by the emergency rent control law (see 400 Madison Ave. v. Niego, 278 App. Div. 313, 315). The language of the amendment is specific: the lease must be for “ a term of twenty-one years or more ” (italics mine); that means at least twenty-one years; such prescribed minimum term is mandatory, a preliminary requirement before the exception applies. Clearly the lease here in question is not one unreservedly binding on the parties for twenty-one years; on the contrary, it may not even begin at all since by its terms it is cancelable if possession is not obtained by the proposed “ lessee and hence is not the type of lease nor is petitioner the type of “ lessee ” intended to be covered by,the amendment.
In City Bank Farmers Trust Co. v. Harvey’s Garages (278 App. Div. 917) concerning another exception, this court held that the statute did not contemplate creation of a. new corporation that had never been in business to seize the parking space that the tenant occupied in that case and get the use of it with the good will of the business. Similarly in the case before us, the tenant has operated a garage on the premises for twenty-five years. The lessee out of possession is a new corporation organized in 1950. I think the Legislature never intended by the amendment to give an opportunity to a landlord to get the good will and the business of a statutory tenant for a new corporation never in business before, by granting such corporation a cancelable twenty-one-year lease, with the express purpose of taking over not merely the premises but the business and the good will that have been built up on the premises over many years by a tenant. The amendment contemplates states of fact not here remotely presented.
In 551 Fifth Ave. v. Wellingbrook (199 Misc. 500 [Appellate Term, First Dept.]) it was held that the right to invoke an amendment of the Business Rent Law (L. 1945, ch. 314, § 8, subd. [h], par. [5], as added by L. 1950, ch. 326) depended on the existence of an effective term of an effective lease for ten years; there a lease, by its terms terminable before the required period, was held not to be within the purview of the act. Similarly the amendment that we are passing on presupposes the *135existence of a valid twenty-one-year lease at the time the proceedings are instituted.
But that is not all. In any event, petitioner is without authority to institute and maintain summary proceedings and oust the tenant under sections 1414 and 1415 of article 83 of the Civil Practice Act. That article is the only statutory authority for the institution of what is concededly a drastic remedy, eviction and summary dispossess of a tenant. To come within such statutory limitations, petitioner must occupy the status of landlord. Obviously the conventional relationship of landlord and tenant does not exist and never did exist between this petitioner and the tenant. Petitioner is neither an owner, lessor nor assignee of the landlord, as expressly required by section 1414 of the Civil Practice Act. Under section 1415 of the Civil Practice Act, the verified petition must show the interest therein of the petitioner. Except for general conclusions of law, in the petitions herein, such interest is not shown. If petitioner is suing as an assignee, it should have set forth that fact in its petitions and alleged facts to establish it. It wholly failed to do so. In this case the lease is not even annexed to the petitions. In summary dispossess proceedings the nature of the petitioner’s interest cannot be established by conclusory allegations or mere inference (Engel, Heller Co. v. Elias Brewing Co., 37 Misc. 480 [Appellate Term, First Dept.]).
The 1950 amendment before us making the specific exception relied on, does not by its terms attempt to change the provisions of the Civil Practice Act as to summary proceedings nor make such provisions applicable to a “lessee ” under the amendment. Repeals or amendments by implication are not favored. It cannot be inferred that the Legislature intended to amend sections 1414 and 1415 to permit a proceeding to be brought by a “ lessee ”. The relationship of landlord and tenant is and always has been requisite (Eells v. Morse, 208 N. Y. 103). If it was the legislative intent contrary to the usual settled requirement to vary the requirements of article 83, such intent would have to be plainly indicated or expressly declared.
In Consolidated Service Stations v. Cities Service Oil Co. (279 App. Div. 592), the Appellate Division of the Second Department by a decision, released since the above was written, has held that the amendment of the Commercial Rent Law here in question (§ 8, subd. [d], par. [2]) was not intended to amend the provisions of section 1414 of article 83 of the Civil Practice Act so as to include a “ lessee ” under that amend*136ment in the class of persons entitled to maintain summary proceedings ; it reversed the Appellate Term of the Second Department and reinstated an order of the Municipal Court dismissing the lessee’s petition on the merits. The Second Department said: “ Petitioner may not maintain summary proceedings to recover possession because the relation of landlord and tenant does not exist between the parties. (Eells v. Morse, 208 N. Y. 103.) Petitioner is neither the landlord, lessor nor assignee of the landlord within the meaning of subdivisions 1 and 6 of section 1414 of the Civil Practice Act. ’ ’
In the City Bank Farmers Trust case (supra) the statute there in question (1950 amendment to § 8, subd. [d]; L. 1945, ch. 3 as amd. by L. 1950, ch. 327), permitting eviction of a tenant and recovering possession for the immediate and personal use of a landlord or a subsidiary corporation set forth no express requirement relating to an existing business of the landlord or a subsidiary, but this court said: “In our opinion, however, the statute contemplates a taking of possession in connection with an existing business of the landlord or its subsidiary, and not the formation of a corporation for the purpose of embarking upon and taking over the business of the tenant. To construe the statute otherwise would work an evasion or circumvention of the purposes of the emergency legislation. We think that the landlord in this case has failed to establish the good faith required by the statute as a condition precedent to recover possession of the tenant’s space. ’ ’ The state of facts presented here is essentially no different from that presented there. A parking lot business is not essentially different from a garage business. The landlord in that case is the same landlord in this case and seeks by another device and by indirection to get the benefit of the tenant’s business.
The amendment before us also requires good faith in seeking immediate and personal possession for personal use. If the ruling appealed from is affirmed and approved, then any landlord who wishes to take for his own financial benefit the good will of a business that a tenant has created by years of labor, may do so by this device and take over by indirection through a twenty-one year lessee any parking lot business, garage business, department store business or any other business established for years together with its valuable good will without even being required to offer the tenant who created it an opportunity to meet the new lessee’s proposed terms. Under another amendment (L. 1951, ch. 431) of the same section (§ 8, subd. [k]), before a landlord can get possession of a store for a *137lessee who offers a ten-year noncancelable lease at $6,000 per annum or more, the landlord must first offer to the tenant in possession a lease under the same terms and conditions. If that is required, as it should be, before a tenant can be deprived of his business and good will in a store, the present amendment deprives the present tenant of equal protection of the laws. To constitute “ equal protection of the laws ”, it is necessary that there be equality among those similarly situated. The essence of the constitutional right to “ equal protection of the laws ” is that all persons similarly situated must be treated alike (Myer v. Myer, 271 App Div. 465, affd. 296 N. Y. 979). A store business and its good will is similar to a garage business and its good will and should receive the same protection of the law. A landlord acting in good faith would not require the compulsion of a statute to offer to the tenant in possession for years a fair opportunity to meet the offer of a proposed lessee who was seeking, as the president of the plaintiff admitted, £ £ to take over ” the business and the present tenant’s good will.
The issue of good faith is extremely important in view of certain facts disclosed at the trial. Plaintiff corporation was created in July, 1950; it executed the lease in question on July 31, 1950; it has never engaged in any business; it has not prepared plans or made any application for any permit to make any of the extensive alterations required by the lease; it has no corporate books of account; it issued its stock without payment therefor ££ at no par value, no purchase price ”, as plaintiff’s president admitted on cross-examination. It appears to have been organized to prosecute these summary proceedings and ££ take over ” the tenant’s business. In that state of facts a complete inquiry into the good faith of the transaction was indicated, but the trial court erroneously excluded on cross-examination material evidence on that issue.
Finally, the emergency statute requires the lease of an££ entire building ”. The lease in question covers both 248 West 80th Street and 250 West 80th Street, New York, N. Y. Premises 248 are apparently part of a building on the southwest corner of Broadway and 80th Street, extending 101 feet, 6 inches, westerly on West 80th Street and 102 feet, 3 inches, southerly on Broadway. The lease from the trustees-owners to plaintiff expressly recognizes certain rights which occupants of portions of the corner building have to the garage portion of the building at 248 West 80th Street. An ££ entire building ” is nut the same as the entire part of part of a building.
*138For all the reasons stated, I dissent and vote to reverse the determination of the Appellate Term and the final and intermediate orders of the Municipal Court in each proceeding and to dismiss both summary proceedings, with costs in tenant’s favor.
Peck, P. J., and Shientag, J., concur with Van Voorhis, J.; Dore, J., dissents and votes to reverse the determination of the Appellate Term and the final and intermediate orders of the Municipal Court, in opinion; Cohn, J., concurs in the result reached by Dore, J., in his dissenting opinion.
Determination of the Appellate Term affirmed, with costs to the respondent, and the orders of the Municipal Court affirmed. [See post, p. 655.]