The effect of the interview between the defendant and one of the . plaintiffs was not before the Court of Appeals when the ease was in that court. I. do not think that, on the testimony as it stands, there was a sufficient consent to entitle, the holder of the mortgage to be treated as a mortgagee in possession,' apjilying. the rule .laid down oil the former appeal by the Court of Appeals (191 N. Y. 306).
The judgment, and order should be affirmed, with costs.
McLaughlin and .¡Scott, JJ., concurred; Laughlin. and Clarke, JJ.„ dissented. '