Commonwealth Mortgage Co. v. De Waltoff

135 A.D. 33, 119 N.Y.S. 781, 1909 N.Y. App. Div. LEXIS 3900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1909
• Status: Published

Opinion

Scott, J.:

The plaintiff appeals from an order of the Appellate Term reversing a final order of the Municipal Court in summary proceedings. The real property from which it is sought to dispossess the respondent consists of an apartment in an apartment house. The . property was mortgaged to the present landlord in June,-1905, by the Rutland. Realty Company, of which the respondent was president. On October 31, 1907, a foreclosure action was begun by the present landlord as mortgagee, .in the course of which and.on April 2, 1908, a receiver was appointed- The .premises wéfe sold under .foreclosure, and on October 1, 1908, the present landlord received the referee’s, deed and became- the owner of the property. The respondent then occupied, as he had done for about a year,- an apart- . ment for which lie claimed to "hold a lease which was dated October 1, 1907, made "by the Rutland Realty Company, by himself as its president,, to.'.one M, S. A., Wilson for a term of three.years from its date. The rent is fixed at $1,800 for the full term and the lease recites that the lessee has paid the entire rent in'-advance. Wilson, by" an instrument purporting to have been -executed on October id,. 1907, assigned this lease to the present respondent. The Municipal Court made a final .order directing a warrant of ..dispossession "to issué. This order" has been reversed by the Appellate Term (see 62 Misc. Rep. 639), and" its reversal is now sought to be sustained upon, the ground that the present, respondent never attorned, to. the present • owner", .of the property and, consequently, that the conventional relation of landlord and tenant, "necessary-to sustain summary proceedings, does not exist. Although the word “ attornment ” is still occasionally used in judicial opinions, it is Very- doubtful, whether the. thing itself, in the" sense in which it existed -at common law, survives in this State. It. certainly has1 no .application to a case like the present. Attofnment'.at, common'ldw" was the acknowledgment by a tenant of a new landlord tin the aliéhation of ■ land and' an . agreement to -become the tenant -Of the purchaser. It could take place only when the land was alien- . ated after the execution of the lease. (Cornish v. Searell, 8 B. & C. 471,) Hence, pfior to the enactment of the statute of 32 Henry" VIII, c. 34, the assignee of the reversion could not maintain an action upon a covenant in the lease, even if the covenant .ran with-the land,unless the tenant attorned to-the assignee and accepted him. as landlord. To remedy, this the. statute above cited was enacted giving generally to the assignee of the reversion the same rights of action that the original lessor had upon the covenants in the lease. Such a statute has long been in force in this State now constituting section 223 of the Real Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) which provides that “ the grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal representative of either of them, has the same remedies, by entry, action or otherwise, for the non-performance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste or for other cause of forfeiture as his grantor or lessor had or would have had if the reversion had remained in him.” These provisions were taken from section 193 of the former Real Property Law (Gen. Laws, chap. 46; Laws of 1896, chap. 547), which revised the statutes existing for many years.

The purchaser at a foreclosure sale of real property acquires all the right, title and interest of the mortgagor, subject to such valid liens and incumbrances as have not been cut off by the foreclosure. He is in legal effect the grantee of the reversion and entitled to pursue any-remedies that the mortgagor might have pursued if he had continued to be the owner.

If the respondent had been made a party to the foreclosure action, his lease being subsequent and subordinate to the mortgage, would have been annulled and his continuance in possession would have been unlawful. In that case the relation of landlord and tenant would not have been created betweep him and the purchaser (unless a new agreement were made), and summary proceedings could not have been resorted to. (Greene v. Geiger, 46 App. Div. 210.) The purchaser’s remedy in that case would have been to apply for a. writ of assistance. . Here, however, the respondent was not made a party to the foreclosure action, and his lease is unaffected thereby. But the purchaser, sncceding to all the title and rights of the original- landlord, becomes the landlord by operation of law, with all the rights and remedies of the original landlord. The conventional relation of landlord and tenant is thus created, and a sufficient foundation exists for the institution of summary proceedings for the recovery of possession if the tenant refuses to abide by the covenants of his lease.

The justice of the Municipal Court found, for reasons very satisfaetorily stated by him, that the respondent’s defense- that- he had ¡laid the rent for the non-payment of which it was sought to dispossess him was not established. With his conclusion we entirely agree.

It follows that the determination of the Appellate Term must be reversed, and the final order of the Municipal Court aifirmed, with costs to the appellant in this court and the Appellate Term.

. Ingraham, McLaughlin, Laughlin and Houghton, JJ., concurred.

' Determination reversed and order of Municipal Court affirmed, with costs to appellant in this court and in the Appellate Term.