¶1Although the landlord may by notice fix the rent to be paid by a tenant in the event that he remain in possession after the expiration of his term, upon the agreement of the parties contained in the record in this case, wherein the mortgagee had made a lease to the owner for occupation of an apartment in the owner’s building at a nominal rental of one dollar a month, the petitioner-mortgagee was not entitled by notice to exact from the owner seventy dollars a month rent for the apartment after the termination of the so-called lease, since the owner had a right to retain possession until the sale in foreclosure. (Holmes v. Gravenhorst, 263 N. Y. 148; Guaranty Trust Co. v. Bisjo Realty Corporation, 152 Misc. 522.)
¶2Final order and judgment reversed, with thirty dollars costs, and final order directed for the tenant, with costs.
¶3All concur; present, Hammer, Callahan and Shientag, JJ.