(dissenting). I would affirm here.
By the judgment in the mortgage foreclosure action to which defendant as tenant was a party, the tenant’s lease expired just as if its term had run out, and, were it not for the emergency rent laws, there would thereafter have been no landlord-tenant relationship and summary proceedings would not have been available (Greene v. Geiger, 46 App. Div. 210; Commonwealth Mtge. Co. v. De Waltoff, 135 App. Div. 33, 35). But the emergency rent laws gave an occupant with an expired lease the status of a “ tenant ” if he chose to remain in possession (Wasservogel v. Meyerowitz, 300 N. Y. 125, 132; see definition of “ tenant ” in State Residential Bent Law [L. 1946, ch. 274, as amd.], § 2, subd. 7, and prohibition of evictions where a lease has “ expired ” in § 5, subd. 1). Therefore, when defendant continued in possession after foreclosure, he was a “ tenant within the emergency rent control law ” (Harlem Sav. Bank v. Cooper, 199 Misc. 1110, 1116; see Pfalzgraf v. Voso, 184 Misc. 575; Da Costa v. Hamilton Republican Club, 187 Misc. 865). With the benefits of that relationship went its burdens (Wasservogel v. Meyerowitz, supra, p. 132) including the burden of summary proceedings in event of nonpayment of rent under article 83 of the Civil Practice Act. May a tenant stay in possession but escape the obligations of a tenant merely by *56failing to pay rent? The obligation to pay rent was not “ imposed ” on defendant — he assumed it by continued occupancy.
(In a sense, this proceeding might now be considered moot, since plaintiff has sold the building, but section 1425 of the Civil Practice Act seems broad enough to permit a judgment for rent, under these circumstances.)
Lewis, Ch. J., Conway, Froessel and Van Voorhis, JJ., concur with Fuld, J.; Desmond, J., dissents in an opinion in which Dye, J., concurs.
Orders reversed, etc.