
    Four Hundred Sixty-one Eighth Avenue Company, Incorporated, Appellant, v. Childs Company, Respondent.
    
      Lease — effect of prosecution to judgment of action to foreclose mortgage on properly in which action lessee is made a party defendant — when lease remains in full force and effect.
    
    
      461 Eighth Avenue Co., Inc., v. Childs Co., 181 App. Div. 742, reversed.
    (Argued November 30, 1920;
    decided March 1, 1921.)
    Appeal from a judgment entered March 1, 1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff and directing a dismissal of the complaint. The action was to recover rent alleged to be due under a lease. Two causes of action were alleged in the complaint, the first in substance being that the Metropolitan Life Insurance Company, plaintiff’s predecessor in title, had purchased said premises at a foreclosure sale, and there was transferred to plaintiff by mesne conveyance all rights which said Metropolitan Life Insurance Company had acquired in said premises which had been sold subject to the lease of the defendant herein, including the ownership of the reversion. The second cause of action repeated the allegations of the first cause of action and recited an assignment by said Metropolitan Life Insurance Company, plaintiff’s predecessor in interest. The defenses to both causes of action were in substance that, by reason of the Metropolitan Life Insurance Company’s having commenced an action of foreclosure, to which the lessee was made a party defendant, which went to judgment, but not to sale, it elected to terminate the lease and is estopped from asserting its validity, and consequently that the plaintiff herein, the Metropolitan Life Insurance Company’s successor in interest, is likewise estopped.
    
      Frederick C. Tanner and Frederick C. Lawyer for appellant.
    
      William A. Barber and Joseph Diehl Fackenthal for respondent.
   Judgment of Appellate Division reversed and that of Trial Term affirmed, with costs in this court and the Appellate Division, on prevailing opinion in Metropolitan Life Ins. Co. v. Childs Co. (230 N. Y. 285).

Concur: Hogan, Caedozo, Pound and Andrews, JJ. Dissenting on opinion of McLaughlin, J., in Metropolitan Life Ins. Co. v. Childs (230 N. Y. 295): His cock, Ch. J., McLaughlin and Crane, JJ.  