We dissent as we did in Lincoln Bldg. Associates v. Barr (1 N Y 2d 413, 420). We think the present is a more extreme example of the use of State police power in a matter of an individual’s constitutional right than was there approved. We may assume that the United States Supreme Court in approving the use of the police power for the protection of the health and welfare of the public in other cases had in mind a practical emergency as distinguished from a theoretical; a distinction between a lack of all kinds of business space caused by events beyond the control of the community and the availability of all kinds of business space at rentals which merely reflect the wage and price increases which have been obtained by the tenants in their own business activities in a generally inflated economy, a difference between conditions which in fact were caused by war and those which in truth are the consequences of an unparalleled prosperity in which the tenants as well as the landlords share.
The circumstances shown in this record can hardly be found to constitute a threat to the safety, health or welfare of the people of the State.
*183The order of the Municipal Court accordingly should be reversed.
Chief Judge Desmond and Judges Dye, Fuld and Foster concur with Judge Froessel; Judge Burke dissents in an opinion in which Judge Van Voorhis concurs.
Order affirmed.