
    Clark W. Dunlop, Plaintiff, v. Frederick T. James, Defendant.
    (Supreme Court, New York Trial Term,
    May, 1901.)
    Subrogation — Liability of an assignee of a lease to a mortgagee of it for payments made by the latter to protect the title.
    Where the mortgagee of a lease, binding the lessee to pay ground rent and taxes, pays them to the lessor in order to prevent the latter from re-entering for the failure of the lessee to pay, the mortgagee becomes subrogated to the rights of the lessor and may, without an assignment from the lessor, recover such payments, on the ground of privity of estate, of one in possession of the premises by virtue of an assignment of the lease executed to him by the lessee subsequently to her .execution of the mortgage.
    Action to recover of defendant, the assignee of a lease and tenant in possession of the premises, certain sums which plaintiff has paid to the owner of the ground, as ground rent and taxes to preserve the lease and prevent its termination.
    Wells & Snedeker, for plaintiff.
    John P. Everett and J. Van Vechten Olcott, for defendant.
   Blanchard, J.

This is an action brought by plaintiff, the owner óf a mortgage on leasehold premises in the city of Hew York, to recover of defendant, the assignee of the lease and the tenant in possession of the premises, certain sums which plaintiff has paid to the. owner of the ground, as ground rent and taxes, to preserve the lease and prevent its termination. The facts established at the trial are that a lease covering the premises Ho'. 20 Warren street, in the city of Hew York, made by the Trinity Church Corporation to Peck, Stow & Wilcox Co., became vested by assignments in Marietta Wilsey, who mortgaged the same to the plaintiff herein and thereupon assigned the lease, subject to the mortgage, to tire defendant. The lease contained a covenant on the part of the lessee to pay rent and also taxes. It also contained a clause permitting the lessor to're-enter upon a breach of the covenants by the lessen In order to avoid such a re-entry hv the lessor, plaintiff paid the sums here sought to he recovered, which represent rent accrued and taxes confirmed while defendant was in possession of the premises.

Upon the trial I directed a verdict for plaintiff, which defendant moves to set aside. Upon consideration, I see no reason to interfere with the ruling made upon the trial. Privity of estate is well recognized as the foundation of a liability on the part of the assignee tó the payment of rent -while in possession of the demised premises. Hallahan v. N. Y., L. E. & W. R. R. Co., 102 N. Y. 197; Stewart v. L. I. R. R. Co., id. 601, 607; Dolph v. White, 12 id. 296, 300; Sayles v. Kerr, 4 App. Div. 150; Tate v. McCormick, 23 Hun, 218, 220. There existed, therefore, a liability on the part of the defendant to make the payments here in question. The plaintiff having paid such sums to protect his interest in the property is subrogated to the rights of the original lessor against the defendant (Koehler v. Hughes, 148 N. Y. 507, 511; Platt v. Brick, 35 Hun, 121, 124; Alford v. Cobb, 28 id. 22), and can maintain an action for the recovery of sums paid, without an assignment from the lessor. McKeon v. Wendelken, 25 Misc. Rep. 712.

The motion of defendant to set aside the verdict is, therefore, denied.

Motion denied.  