Kehoe v. Backer

157 A.D. 792, 142 N.Y.S. 691, 1913 N.Y. App. Div. LEXIS 6615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1913
• Status: Published

Opinion

Dowling, J.:

On July 27, 1895, Thomas J. Oarleton, plaintiff’s testator, leased in writing to Joseph Goldstein and Arma Goldstein the premises 114 Columbia street and 272 Stanton street, in the city of New York, for the term of twenty-one years, from August 1, 1895, at a yearly rental of $1,300, payable monthly in advance, together with taxes and Croton water charges and insurance. On the same day Jacob Backer, the defendant, guaranteed in writing the performance of the lease by the Goldsteins. On March 31, 1898, an extension of the lease was made in writing for five years from August 1, 1916. This was not a new or substituted lease, but an ordinary extension of lease, the original lease still having eighteen years to run, and the extension commencing only at its expiration. This extension Backer did not guarantee. On July 11, 1903, Carleton, who also owned premises on Twenty-fifth street, in the city of Mew York, which the Goldsteins were seeking to buy, agreed to take for his equity therein the sum of $16,000, and as security for the carrying out of the agreement of sale took a mortgage for $6,000 on the aforesaid Columbia street lease. This mortgage, executed by the Goldsteins, was duly foreclosed by plaintiff herein, as trustee of the Oarleton estate, the judgment of foreclosure and sale being entered August 31, 1911. The trastee bought in the leasehold at the referee’s sale thereunder on September 28, 1911, for $500. There is no doubt that when he bought this lease and took the referee’s deed the leasehold merged in the fee. But the amounts which he is claiming here are all sums due before the action in foreclosure reached the stage of judgment. The action was commenced June 18, 1911. The sale took place September 28, 1911. Plaintiff’s claim for rent is for the months of June, July, August and September, the rent under the terms of the lease being payable in advance on the first day of each month. There are further claims for $1,001.53, being the aggregate of the taxes for the year 1910, confirmed October 2, 1910, and of the water rates for 1908, 1909 and 1910, and January, 1911, together with the interest thereon, and for $41.25 insurance premium. The only answer of the defendant to these claims is (1) that the extension of the lease made a new lease and released the surety, for which contention there is no foundation whatever, as the extension agreement in no way affected the original lease, which still remained intact; (2) that the lease merged in the fee, but that being so, it has no more effect on claims which matured before the merger than would a dispossess proceeding.

Judgment is directed in favor of plaintiff for the full amount claimed, namely, $1,476.10, with interest and costs.

Ingraham, P. J., McLaughlin, Scott and Hotchkiss, JJ,, concurred.

Judgment ordered for plaintiff as directed in opinion, with costs. Order to he settled on notice.