Memorandum
Per Curiam.The landlord in this proceeding for nonpayment of rent of a store failed to establish compliance with chapter 314 of the Laws of 1945, as amended (Business Rent Law). The premises were unoccupied June 1, 1944. The vent was not fixed by agreement, arbitration or by the Supreme *321Court. The lease entered into between the landlord’s predecessor and the tenant is not an agreement fixing rent as required by the statute (Flo-Ru-Na Inc., v. Zimmerman, 185 Misc. 759). Tenant likewise failed to establish any emergency rent and, therefore, no excess payments were proved.
The final order insofar as it awarded possession should be unanimously reversed on the law, and insofar as it dismissed the counterclaim, should be unanimously modified by providing that the dismissal is without prejudice and, as so modified, affirmed, without costs to either party.
Mac Crate, Steihbrihk and Rubehsteih, JJ., concur.
Order reversed, etc.