The complaint alleges that plaintiffs entered into a stipulation with the landlord consenting to the entry of a final order “ upon the allegations of said petition ” and that they vacated “ [pjursuant to said Final Order ”. Since it is further alleged that the prospective tenant failed to occupy the space vacated pursuant to the order and that the space had been rented by other persons, a prima facie cause of action is set forth under the provisions of subdivision (k) of section 8. It must be borne in mind that this complaint was dismissed on the ground that it was insufficient on its face.
Subdivision (k) of section 8 provides for damages if the prospective tenant fails to occupy the store thirty days subsequent to “ such dispossession”, i.e., “ by action or proceeding to evict or to recover possession, by exclusion from possession, or otherwise ” (§ 8). The cases of Sno-Wite v. Gerald Operat*195ing Corp. (271 App. Div. 314, affd. without opinion 297 N. Y. 1007) and Kauffman & Sons Saddlery Co. v. Miller (298 N. Y. 38) hold that when a tenant vacated the premises after the landlord commenced an eviction proceeding, there was a “ dispossession ” (§ 8, subd. [k]) rather than a voluntary withdrawal, and that the tenant could recover damages if the basis upon which the proceedings were predicated did not materialize.
In Rosner v. Textile Binding & Trimming Co. (275 App. Div. 760, revd. 300 N. Y. 319) and Joanette Juniors v. Board of Home Missions of Cong. & Christian Churches (273 App. Div. 999, affd. 298 N. Y. 826) complaints by tenants for damages were dismissed because they had vacated the premises before any proceeding had been instituted and so had not been technically dispossessed. Such situations were carefully distinguished from those confronting the court in the Sno-Wite (supra) and Kauffman (supra) cases.
The tenants’ position here would appear to be stronger than in either the Kauffman or Sno-Wite cases, since it is alleged that not only were proceedings commenced, but that the case went to trial, that the landlord made what the trier of the facts could find to be a substantial showing of compliance with the statutory conditions, and that a final order was entered on the landlord’s petition pursuant to which the tenants moved out.
The plaintiffs were confronted on the trial with the landlord’s clearly indicated ability to prove the allegations of the petition. The landlord produced a prospective tenant who had entered into a ten-year lease. Rarely is a tenant in such a proceeding in a position to challenge the bona fides of the proposed leasing. Plaintiffs therefore sensibly decided to prolong the trial no further and to admit the landlord’s allegations by stipulation. They should not be penalized for so doing. Otherwise, we would be advising tenants that in order to preserve their legal rights they must drag out the legal processes by resisting to the bitter end.
The Sno-Wite and Kauffman cases still express the law of this State, and the statutory changes enacted thereafter in no way vitiate their effect. Section 12 of the act originally provided that none of the provisions of the act could be waived. It was amended by chapter 417 of the Laws of 1952 to provide that a written release for a valuable consideration would not be construed as a waiver of the act. This amendment was designed to overcome the effect of the decision in Estro Chem. Co. v. Falk (303 N. Y. 83) which held that a written release of a cause of action for excessive rents was unenforcible even *196though that cause of action had already accrued. (See N. Y. Legis. Doc., 1952, No. 61, p. 16.) However, a written release would apply only to claims in existence at the time (Maruzzella v. Metro Associated Services, 275 App. Div. 114). In any event, in this case the provisions of section 12 are inapplicable since the plaintiffs received no consideration and no release was in fact executed.
Nor can the plaintiffs’ removal be deemed to have been pursuant to subdivision (g) of section 8, which was enacted by chapter 535 of the Laws of 1949. Unlike the tenants in Kober v. Kopelowitz (284 App. Div. 892) and Spencer Secretarial School v. Association of Bar of City of N. Y. (286 App. Div. 998) the plaintiffs here did not enter into an agreement in writing to vacate the premises independent of eviction proceedings. (Cf. Lackey v. Hempel, 276 App. Div. 909.) Instead, they expressly stipulated that their removal was pursuant to the provisions of subdivision (k) of section 8. Such a stipulation should not be tortured into a removal agreement under subdivision (g) of section 8.
Plaintiffs further allege that oral assurance was given that the acceptance of the $1,500 offer would not be a waiver of any future rights to sue for damages for violation of subdivision (k) of section 8. The stipulation is silent as to the release of rights not yet accrued, and plaintiffs allege that they refused to give a release unless it was expressly stated that such release would be without prejudice to their future rights. At the very least, therefore, this raises a question of fact (Giannini v. Sheeran, 276 App. Div. 760; Diamant Typo. Service v. Garfield News Co., 83 N. Y. S. 2d 462, affd. 273 App. Div. 880).
Plaintiffs plead in their second cause of action that they are “ ready and willing to execute and deliver said general release, without prejudice, however, to plaintiffs’ right to claim damages under § 8(k) and otherwise.” Even if it were to be determined that plaintiffs have no rights under subdivision (k) of section 8, they are entitled to the $1,500 which was promised to them upon their removal, and the allegations of their readiness to deliver the release are sufficient.
The order of the court below dismissing the complaint should be reversed, and the motion denied.
Breitel, J. P., and Rabin, J., concur with Bergan, J.; Botein, J., dissents and votes to reverse in opinion, in which Bastow, J., concurs.
Order affirmed, with $20 costs and disbursements to the respondent.