(dissenting). I dissent. I am impelled to the conclusion that the final order in favor of the landlords should be affirmed.
The prime tenant, New Venice Restaurant, Inc., was the tenant of the entire demised premises, a three-story brick building and basement, a single and indivisible demise; the rental was $345 per month. The proceeding was a nonpayment one, for the unpaid April, 1948, rent. The main tenant defaulted and the landlords were entitled to a final order awarding possession to them. The appellants each occupied an apartment as dwelling space, as a subtenant of the principal tenant. No relationship of landlord and tenant existed between the landlords and the subtenants-appellants herein.
*1053Though not indispensable parties to the proceeding the appellants were cited so as to bind them by the final order (Atterbury v. Edwa, 61 Misc. 234; Irving Trust Co. v. One Thirty One W. Forty-Second St. Corp., 71 N. Y. S. 2d 838, affd. 272 App. Div. 999).
The appellants’ basic claim is that they come within the protective provisions of the Federal Housing and Rent Acts of 1947 and 1948 (U. S. Code, tit. 50, Appendix, § 1881 et seq.) and may continue in possession so long as they pay the rent to which the landlords are entitled (Housing and Rent Act 1947, § 209, subd. [a], par. [1]).
The rent to which the landlords are entitled is the sum of $345; appellants may continue in possession if they pay this sum. Their contention is, as I understand it, that they are only required to pay the rent for their respective apartments, $50 and $40 per month, and not the rent for the whole demised premises.
I am unable to concur in this view.
Firstly, this court has held that a subtenant and undertenant have no status or protection under the emergency commercial and business space laws (Valeray Real Estate Co. v. Spector Motor Service, N. Y. L. J., July 10, 1945, p. 54, col. 3, affd. sub nom. Valeray Real Estate Co. v. National Transp. Co., 270 App. Div. 805; and Gasoff Realty Corp. v. Berger, 188 Misc. 622).
In Tighe v. Sinclair Refining Co. (274 App. Div. 22) a distinction has been drawn to include as coming within the protective provisions of the emergency rent laws one who is a subtenant or undertenant of the whole demised premises; the court stated that it did not pass upon the status of one who is a subtenant or undertenant of only a portion of the premises. It held that such ruling was not in conflict with the Valeray case (supra) as in that case the undertenant of a part of the premises took the position that it could remain in possession of its portion of the building without taking a lease of the whole premises.
In affirming the determination of this court the fair inference appears to be that a subtenant or undertenant of a portion of the demised premises, and not of the whole premises, has no status or protection under the emergency rent laws.
Until the Appellate Division holds directly otherwise, I feel that we must take the position that where the subtenancy is only of a portion of the premises where the premises were demised to the main tenant in their entirety, such portional subtenant or undertenant is without status or protection under *1054the emergency rent laws, and, by parity of reasoning, such must be our position with respect to a subtenant of a portion of premises used for dwelling purposes in our construction of the Federal Housing and Rent Acts of 1947 and 1948.
In the instant ease the appellants are subtenants or under-tenants of only a portion of the entire premises which were demised to the principal tenant and hence must be held to have no status or protection under the mentioned Federal housing acts.
Secondly, I find no provision in the mentioned Federal enactments conferring any status or rights or protection on subtenants or undertenants with respect to space used for housing accommodations. They possessed none under the Federal 1947 housing act (Easley v. Murray Hill Operating Co., 187 Misc. 100, affd. 271 App. Div. 967, motion for leave to appeal denied 271 App. Div. 1010), and the 1948 act made no provision to include them. But, in view of the ruling in the Tighe case (supra), at most, as I see it, such a status and protection can only be conferred, in construing the Federal housing acts, where the subtenancy of dwelling space includes the whole of the demised premises and would not be applicable to a case like that at bar, where the subtenancy comprised only a portion of the premises.
Therefore, I am led to the conclusion that unless the appellants, as subtenants or undertenants pay to the landlords the sum $345, the amount due as rent from the principal tenant, they may not continue in possession.
One other feature requires comment. This being a nonpayment proceeding, a certificate of eviction is not required (Temporary City Housing Rent Commission Regulation II for Apartments and Housing Accommodations, art. II, § 1).
I, therefore, vote to affirm.
Hoestadtbr, J., votes for reversal in opinion; Hammer, J., concurs in result; Eder, J., dissents in opinion.Order reversed, etc.