Astor v. Turner

2 Barb. 444, 3 How. Pr. 225

• Court: New York Supreme Court
• Decided: February 7, 1848
• Status: Published

Opinion

Edmonds, J.

By the statute, (2 R. S. 82, § 6,) the estate of Mrs. Kane, which was a lease for years, passed to her administrator as assets, and he was properly in possession as the owner of the equity of redemption. This is therefore an application to compel the owner of the equity of redemption, in possession before foreclosure, to pay an occupation rent for the premises. I had this question before me at the October special term, in the Mechanics' Bank v. Parsons & Flower, and I then held, in a case very like this, that the defendant in possession should pay an occupation rent. There, as here, the mortgage was on the leasehold interest, and the defendant in possession was an assignee of the lease. I have now taken occasion to review that decision, and see no reason for altering it. Two considerations influenced me. One was that the case was one where, if a tenant of the owner of the equity of redemption had been in possession, a receiver of the rents would be appointed, of course; and I could see no good reason for adopting a different rule when the owner himself was in possession. The other was, that the point had been distinctly ruled in the English court of chancery, upon principles equally applicable here. In Reed v. Middleton, (1 Tur. & Russ. 455,) the plaintiffs were mortgagees of a public house, held by their debtor, at a small ground rent. He had assigned the lease subject to the mortgage, and the assignee was in possession, when the mortgagees filed their bill to foreclose. The plaintiffs moved that the defendant in possession should attorn to the receiver, or that it be referred to a master, to set an occupation rent, to be paid the receiver. The Lord Chancellor, Eldon, ordered accordingly. This course is peculiarly appropriate in the case of a mortgage on a leasehold interest; because otherwise, the owner of the equity of redemption might, by protracting the litigation till the expiration of the term, render the security utterly valueless.

The motion must therefore be granted in this case, as in that; and an order must be entered directing that it be referred to a referee to appoint a receiver, to whom the tenant in possession must attorn, and that the referee set an occupation rent, to be paid by the defendant, Kane, quarterly, from the service of the order.