I dissent to the extent that I would affirm that portion of the order appealed from as granted plaintiffs judgment against the defendants for $2,000—the amount paid by plaintiffs in connection with the execution of the proprietary lease agreement. It seems that the majority position is that the $2,000 sought to be recovered is excess “ rent ” within the meaning of the rent control law and therefore the two-year period of limitation is applicable.
I do not consider that payment—albeit denominated by the agreement as “ leasehold lien rent” — as “rent” within the contemplation of the provisions of the rent control law treating with overcharges (Emergency Housing Rent Control Law, § 11, subd. 5; L. 1946, ch. 274, as amd.). It was, in effect, a deposit paid in anticipation of the acquisition of proprietary rights in the co-operative. This being so the plaintiffs’ right to a recovery of such sum does not flow from the rent control statute but rather stems from their common-law right to recover the deposit paid on the instant contract which has been rescinded. The two-year statute is therefore inapplicable.
Botein, P. J., Bbeitel and Stevens, JJ., concur with Bastow, J.; Rabin, J., dissents in opinion.
Order, entered on October 25, 1962, modified to the extent of reversing so much thereof as granted plaintiffs judgment against defendants in the sum of $2,000. The seventh cause of action in the complaint is dismissed, and, as so modified, the order is affirmed, without costs.
Settle order on notice.