Edward Tarr, Inc. v. Phoenix Publications, Inc.

Botein, J. (dissenting).

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…