(dissenting). I dissent in part from the determination arrived at by the majority. I vote to affirm the final-order dismissing the landlord’s petition on the merits. I agree that the judgment in favor of the tenants on their counterclaim should be reversed and a new trial ordered which should be limited entirely, however, to a consideration of the said counterclaim.
The purported reasonable rent agreement was a mere sham and a patent flagrant attempt to circumvent the emergency rent legislation. The law intends that a reasonable rent may be acceded to by a tenant with respect to his own occupancy. The statute never contemplated that a tenant might make such an agreement for a price where simultaneously therewith he agrees to vacate the premises almost immediately thereafter.
The Municipal Court has ample power to determine the bona fides of the reasonable rent agreement. (Wilbiskey v. German Alliance Ins. Co., 90 Misc. 335; Milella v. Simpson, 47 Misc. 690; Schollars v. Coghlan, 54 Misc. 612; Epstein v. Kaplan, 150 Misc. 520; DeVita v. Pianisani, 127 Misc. 611.)
A new trial should be ordered to afford the landlord an opportunity to establish the reasonable rent of the premises in reduction or extinction of the tenants’ counterclaim.
Rubenstein and Steinbbink, JJ., concur in memorandum by the court; Golden, J., dissents in memorandum.
Final order and judgment reversed, etc.