McDonald v. Cohen

65 Misc. 489, 120 N.Y.S. 94

Opinions

Goff, J.

An order in summary proceedings dispossessing the tenant-appellant has been made under the following circumstances: The owner of the premises in question, of which the tenant is in possession of a part, executed a mortgage upon them which was recorded in 1905. In February, 1909, the owner executed the lease to appellant under which he holds possession. In March, 1909, the landlord, who is respondent here, was appointed receiver of rents and profits, in a suit to foreclose the mortgage. The tenant paid in advance for five months’ rent of that part of the premises which he leased, being the whole term of his lease; and now, refusing to pay rent to the receiver from April 1, 1909, an order dispossessing him has been made accordingly.

The learned justice of the trial court rendered his decision upon the authority of Fletcher v. McKeon, 71 App. Div. 278, in which the essential circumstances were on all fours with those presented here with one exception. In that case, the tenant was a party to the foreclosure action; in this, there is no evidence that the tenant was a party. Mot being a party, he is not bound by proceedings in the action (Wilt. Mort. Force., § 157) ; and, not being a party .and not having attorned to the receiver, he cannot be divested of his possession. Plaintiff’s remedy is pointed out in Bowery Savings Bank v. Richards, 3 Hun, 366.

Final order reversed, with costs, and proceeding dismissed.

Giegerich, J., concurs.