Dick's Restaurant and Bar, Inc., Respondent, v. Bessie Rosenwasser et al., Individually and as Copartners, Defendants, and Harry Simon, Individually and as a Copartner, Appellant

Dick’s Restaurant and Bar, Inc., Respondent, v. Bessie Rosenwasser et al., Individually and as Copartners, Defendants, and Harry Simon, Individually and as a Copartner, Appellant. [MAJORITY] Present — Peck, P. J., Dore, Callahan and Van Voorhis, JJ.; Dore, J., concurs to affirm as follows: On the motion to dismiss for insufficiency under rule 106 of the Rules of Civil Practice we must assume the truth of all allegations of the complaint factually setting forth that the arbitration in question was merely pro forma and a fabrication to evade the Emergency Rent Laws. If this is so, the arbitration was entirely null and void, the provisions of section 1463 of the Civil PraeHce Act are not applicable and in such case the arbitration and the order confirming it may, if proper proof is adduced, be vacated. The Emergency Rent Laws make void any waiver by the tenant of their provisions (L. 1945, eh. 314, as amd. by L. 1946, eh. 273, eff. March 30, 1946.) Whether what plaintiff alleges is true, must await raising of issues by answer including any defenses defendants may interpose and proper proof under such issues so raised. [195 Misc. 179.]