dissenting:
Upon the fact of this case, I must dissent from the position that Rosewood controls the disposition of this case. As framed, the opinion does not make clear a relevant fact, i.e., that the defendant was not a lessee of the plaintiff, and in fact had no established legal or contractural relation with the plaintiff.
In Rosewood, the sellers were seeking to recover the possession of premises upon the authority of the provisions of an executory installment contract for sale of real estate. The court noted that the defendants were entitled to possession under such contract as equitable owners, and that judgment in the statutory action would bring the loss of substantial accumulated equities held by the defendants. It was pointed out that for purposes of the statutory action, such facts clearly distinguished these defendants from tenants and that the equitable defenses of fraud or usury in the contract were fairly said to be germane in determining the right to possession. In short, the seller should not be permitted to recover possession through the provisions of a contract which was itself subject, to challenge upon equitable grounds.
Here, the Chicago Housing Authority leased the premises from plaintiff beginning on June 1, 1968. While such lease had a provision for automatic renewal, such was subject to negation by either party upon giving written notice sixty days prior to the end of the term. Plaintiff gave such notice to the Authority on March 29, 1969. The latter lessee does not challenge the action.
Defendant became a sub-tenant by virtue of a lease from the Authority for a term of one year beginning on June 1, 1968. Defendant’s lease from the Authority contained a provision for termination by thirty days written notice with a clause that the exercise of the right of termination by either party is “® * * unqualified and unrestricted, nor need any reason be given therefor.” The Authority gave the notice on May 29, 1969, to be effective June 30, 1969. Under the circumstances, the Authority was not entitled to possession for purposes of the subsequent action for possession for its lease had expired by its terms.
Defendant’s counterclaim seeks an order that the plaintiff make a new and further lease with the Authority. Neither this nor the asserted matters of defense are the same thing as ascertaining whether or not an executory contract is unconscionable. I doubt that the expiration of a lease by its terms can be transmogrified into an equitable defense upon the holding of Rosewood. The issues appealed are not truly germane to this action for possession. The order of the trial court should be affirmed.