(dissenting). The landlords instituted this proceeding against the tenant and undertenants to recover possession for nonpayment of rent. The tenant defaulted; the undertenants defended, and after trial the petition was dismissed as to them and landlords appeal.
The demised premises which were let to the tenant (Hollies) comprise a corner store and basement space under the store.
The undertenant Brest occupies a space four feet deep, twelve feet high and twelve feet wide, completely partitioned off from the remainder of the store, and half the entire cellar, which is not partitioned from the rest of the basement.
The undertenant Farrell occupies a portion of the cellar space four feet by twelve feet, to the left, beyond the stairs.
Upon the trial the basic issue litigated was whether the under-tenants were required to pay the full rent for the entire space, which the main tenant was obligated to pay under the lease, or only the rent for the space occupied by each undertenant.
The court below wrote an opinion, reaching the ultimate conclusion that the undertenants could continue in possession upon paying the emergency rent.
I am in accord with this view and conclusion. In Tighe v. Sinclair Refining Co. (274 App. Div. 22) it was held that a subtenant in possession of entire demised premises, who was willing to absorb the whole rental area and was willing to make a lease or rental agreement called for by the statute, was protected by the emergency rent law and could not be evicted even though the main tenant had consented to the entry of a final order awarding the landlord possession. It reiterated that holding in Hall Realty Co. v. V. A. C. Corp. (275 App. Div. 213) again citing the Tighe case (supra). It left undecided, in the Tighe case, the question whether a subtenant willing only to continue occupancy of his own space, paying the emergency rent for that space alone, was protected by the emergency rent laws.
In City Textile Print. Corp. v. Zenith Grainer & Litho Equipment Corp. (275 App. Div. 800) the court extended its holding to include subtenants occupying only a portion of the entire rental area, saying: “The undertenants-respondents are entitled to the protection of the Commercial Bent Law (Tighe v. Sinclair Refining Co., 274 App. Div. 22), and we think that this is true notwithstanding that said undertenants occupy but a portion of the entire rental area.”
In Brause v. Parisi (274 App. Div. 469, affd. 299 N. Y. 585) it was held that subtenants who had tendered rent due for resi*346dential space constituting a portion of a building leased for both residential and commercial purposes, were entitled to protection under the local emergency rent law, even though the main tenant as lessee of the entire building had defaulted in the payment of rent. There, the landlords also claimed that they were entitled to the payment of the full reserved rental for the entire premises, or possession of the entire building.
The cases cited establish the same principle as applied to business, commercial and residential space, viz., that undertenants are entitled to continue in possession of their space and are not required to absorb the entire rental area at the same rent previously charged to the tenant for the entire space demised.
The undertenants have offered to pay their fixed and emergency rentals formerly paid to the tenant Hallies or the reasonable rent for the space they occupy — the rent fixed by the court or by agreement or any other method, as long as it is fixed in the proper way, but this the landlords have refused, insisting they are entitled to the full rent which the main tenant was obligated to pay for the entire premises.
Under the cases cited the premise upon which the landlords proceed is an untenable one.
Landlords contend, also, that the undertenants must pay the rent for the entire premises demised to the tenant, as they are not possible of being physically subdivided from the entire premises — that here the spaces demised to the undertenants are not separable from the whole.
I do not find this claim supported by the record. Undertenant Brost occupies a sidewalk stand, plus a space twelve feet wide by four feet deep, which it is said formerly constituted the entire show window, plus all of the basement, except the front portion of the basement reserved by the main tenant, Hallies, and a four foot by twelve foot portion of the basement occupied by under-tenant Farrell.
The show window, admittedly, is partitioned off; the under-tenants ’ basement spaces are not partitioned off.
I fail to see why this makes the premises incapable of subdivision as to a rental charge. If physical subdivision is necessary to apportion a correct rental to the part of the area now occupied by the undertenants, this should be easily ascertainable and such a suggestion is indicated in the City Textile case (supra). If the cellar is partitioned, access to each portion thereof may be had by the simple act of putting in a door in the partition leading to each portion of the cellar.
*347I am of opinion the appeal is an untenable one and vote to affirm the final order appealed from.
Hecht, J., concurs with Hammer, J.; Eder, J., dissents in opinion.
Final order and judgment reversed, etc.