Dr. Henry Templeton Smith, owner of an office in a co-operative building belonging to Doctors Owning Corporation, instituted summary proceedings for the recovery from defendants of his office space for his own use. Defendants were statutory tenants of this space when he purchased it, holding in subordination to the former owner. A final dispossess order was made by the Municipal Court on June 2, 1947, which was reversed by the Appellate Term but reinstated by the Appellate Division ( 273 App. Div. 277) and affirmed by the Court of Appeals in June, 1948 ( 298 N.Y. 534). Defendants finally surrendered possession on July 15, 1948. Plaintiff has brought this action to recover damages for having been unlawfully kept out of possession.
" See also Kole v. Kousnetz, 1948, 335 Ill. App. 123, 80 N.E.2d 451. It has been recognized, under Acts modeled upon the Federal pattern, that purchasers of apartments under the co-operative plan are to be treated as landlords or owners. See Hicks v. Bigelow, D.C. Mun. Ct., 55 A.2d 924, and Smith v. Feigin, 273 App. Div. 277, 77 N.Y.S.2d 229, affirmed without opinion by the New York Court of Appeals, 298 N.Y. 534, 80 N.E.2d 668. The appellant further calls attention to the fact that before the argument of this case on appeal, but after the passage of the decree appealed from, Congress extended the Act of 1947 for one year effective April 1, 1948, with certain amendments.
Therefore, as of September 10, the date of the trial herein, the tenant was not then protected by any such Federal requirement, as he had been prior to July 1, 1947.' See also Kole v. Kousnetz, 1948, 335 Ill. App. 123, 80 N.E.2d 451. It has been recognized, under Acts modeled upon the Federal pattern, that purchasers of apartments under the cooperative plan are to be treated as landlords or owners. See Hicks v. Bigelow, D.C. Mun. Ct., 55 A.2d 924, and Smith v. Feigin, 273 App. Div. 277, 77 N.Y.S.2d 229, affirmed without opinion by the Now York Court of Appeals, 298 N.Y. 534, 80 N.E.2d 668. [See, also, 542 Morris Park Ave. Corporation v. Wilkins, 197 N.Y.S. 625, 627; Curtis v. Le May, 60 N.Y.S.2d 768, 770.] "The appellant further calls attention to the fact that before the argument of this case on appeal, but after the passage of the decree appealed from, Congress extended the Act of 1947 for one year effective April 1, 1948, with certain amendments.
Considered separately the shares of stock and the lease each would be considered personalty for purposes of estate distribution (Surrogate's Ct. Act, § 202, subds. 1, 8; Schmitt v. Stoss, 207 N.Y. 731; Wells v. Higgins, 132 N.Y. 459) and the fact that the stock ownership is prerequisite to the procurement of the lease would not seem to affect the legal classification of these assets. Some courts, for the very limited purposes of dispossess proceedings, have disregarded the corporate entity in co-operative apartment enterprises and have regarded a lessee as either an owner-lessee or a title holder of certain space (Smith v. Feigin, 273 App. Div. 277, affd. 298 N.Y. 534; Curtis v. Le May, 186 Misc. 853; see 542 Morris Park Ave. Corp. v. Wilkins, 120 Misc. 48, 51) while in other instances the shareholder-lessee has been considered a tenant (Greenberg v. Colonial Studios, 107 N. Y. S. 2d 87, revg. 105 N. Y. S. 2d 494; Braislin, Porter & Baldwin v. Sawdon, 68 N. Y. S. 2d 774; cf. Dunbar Apts. v. Nelson, 136 Misc. 561). Such rulings, however, are not necessarily inconsistent with the generally accepted classification of an estate measured by a definite number of years as personalty and not realty (see Despard v. Churchill, 53 N.Y. 192; Matter of Ehrsam, 37 App. Div. 272; Matter of Althause, 63 App. Div. 252, affd. 168 N.Y. 670; Rodack v. New Moon Theatre, 121 Misc. 63; Durand v. Lipman, 165 Misc. 615, 622; Wagner v. Mallory, 169 N.Y. 501; Decedent Estate Law § 80, subd. 1, and Restatement, Property, § 8). The testator was an attorney and was familiar with this traditional classification.