Prudence Co. v. 160 West Seventy-third Street Corp.

Townley, J.

(dissenting). The mortgaged premises herein consisted of a fourteen-story elevator apartment building containing 147 apartments. Twenty-three of the apartments had been sold to various persons under a co-operative ownership plan, In accord*546anee with the plans and agreements under which these apartments were sold, the purchasers are required to pay certain fixed charges called “ maintenance charges.” Such maintenance charges are con siderably smaller than the rental value of the respective apartments.

The purchasers, in buying an apartment, occupy a status analogous to that of stockholders in the mortgagor corporation. They are, as called by their own counsel, co-owners” of the property. The agreement under which ■ they pay maintenance charges is not in any sense a lease made between owner and tenant. Appellant co-owners or their predecessors consented to the making of the mortgage under foreclosure and are estopped from denying the applicability of' its terms to themselves. Accordingly, the easel cited in the prevailing opinion having to do with strict leaseholds, have no application.

By analogy to the decision in Public Bank of New York v. London (159 App. Div. 484) the order should be affirmed, with ten dollars costs and disbursements.

Order reversed, with ten dollars costs and disbursements to the appellants against the receiver, respondent, and the motion denied, wiih ten dollars costs. Settle order on notice.