(concurring). I concur in the result only for the reason that the petition is fatally defective in that it contains no allegation that the lessee-landlord possesses an interest of not less than 50% in the investment in the business which he proposes to carry on in the space sought to be recovered (L. 1945, ch. 315, § 8, subd. [d]). If such an allegation had been included I should have voted to affirm the order appealed from adhering to my views as expressed in Trade Accessories v. *96Bellet (184 Misc. 962) and reiterated in Tishman Realty & Constr. Co. v. Wolf (185 Misc. 317) to the effect that a lessee-landlord may institute and maintain a summary proceeding. That in the Tishman case (supra) the Appellate Division denied leave to appeal (N. Y. L. J., Oct. 20, 1945, p. 975, col. 5) carries no implication that it disagreed with that conclusion; it may not be regarded as an authoritative precedent (Matter of Marchant v. Mead-Morrison M. Co., 252 N. Y. 284, 297-298). As there pointed out by Cardozo, Ch. J. (p. 298): “ Not infrequently relief is refused in the exercise of discretion, for the test in many eases is the promotion of substantial justice ”.
For the reason stated I concur in the result.
McLaughlin, J., concurs with Hecht, J.; Eder, J., concurs in result in opinion.
Order reversed, etc.