Opinion
February 23, 1954.
Plaintiffs, tenants of certain store premises formerly owned by defendant Mygold Realty Corporation and conveyed by that defendant to the defendants Joseph Radin and Bertha Radin, brought this action to have certain leases declared illegal and void, to recover certain payments of rent allegedly collected in violation of the pertinent rent statutes, and for other related relief. Defendant Mygold Realty Corporation appeals from an order denying its motion to dismiss the third amended complaint as against it. Order reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs. In our opinion, the amended complaint now before us fails to state facts which constitute a cause of action against appellant. Taking the allegations of the complaint as true, the fraud and conspiracy therein charged to appellant resulted only in the substitution of one lease, illegal as to its provisions for the payment of rent, for another, similarly illegal, and did not affect respondents' rights under the applicable rent control statutes or otherwise operate to their prejudice. Although appellant is alleged to have collected illegally excessive rents from respondents, any cause of action which thereby accrued against appellant and in favor of respondents was extinguished by the running of the statutory period of limitation before the commencement of this action. (Commercial Rent Law, L. 1945, ch. 3, § 11, as amd.; Business Rent Law, L. 1945, ch. 314, § 11, as amd.; Citrone v. Palladino, 77 N.Y.S.2d 489; Wesling v. Solovey, 277 App. Div. 834.) Nolan, P.J., Adel, Wenzel, MacCrate and Murphy, JJ., concur.