
    
      In re Hosley.
    
      (Supreme Court, General Term, Fifth Department.
    
    April 11, 1890.)
    Landlord and Tenant—Power of Attorney—Lease by Mortgagee.
    A power of attorney, given by a mortgagor to his mortgagee, to rent the mortgaged premises, collect the rents, and apply them to the mortgage, and for the further purpose of selling and conveying the premises, does not place the mortgagee in possession so as to make him the landlord of a tenant to whom he had let the premises.
    Appeal from Cattaraugus county court.
    Summary proceedings to recover possession of demised premises for nonpayment of rent, instituted by Albert Hosley against John Mullins. From an order awarding possession of the premises to the petitioner the tenant appeals.
    Argued before Dwight, P. J., and Macohber and Corlett, JJ.
    
      Inman & Cole, for appellant. Ansley & Davie, for respondent.
   Macomber, J.

The only question arising on this appeal is whether the petitioner sustained to John Mullins, the tenant, the relationship of landlord. If he did, the order made by the county judge is correct, and should be affirmed. If he did not, then, clearly enough, the wrong party called for the possession of the premises, and the same should have been withheld from him.

The petitioner in the month of November, 1882, held a mortgage upon the premises in question for the sum of $1,700, upon which, at the time of the beginning of these proceedings, the sum of about $1,000 remained due and unpaid. The premises were owned at that time, as well as now, by a man by the name of Butterfuss, who had executed the above-mentioned mortgage. In the year 1886 the owner gave to the respondent in this appeal a power of attorney, as follows: “Know all men by these presence, that I, Jacob Butter-fuss, of the town of Salamanca, county of Cattaraugus, and state of New York, have made, constituted, and appointed, and by these presence do make, constitute, and appoint, Albert Hosley my true and lawful attorney, for me, and in my name, place, and stead, for the purpose of renting for me my dwelling-house situate on the south side of Church street, in the village of Salamanca, N. Y., and for the purpose of collecting the rents accruing thereon; that he should use and apply such rents, first, in paying the taxes and insurance upon said property, and other necessary expenses of keeping same in a tenantable condition, and the surplus shall by him be applied on real-estate mortgage now held by said Hosley on said property. Also, for the further purpose of selling and conveying said property for a sum not less than the incumbrance thereon, giving and granting unto him,” etc.,—concluding in the usual form. This was a power of attorney by the owner to Hosley, and nothing more. The paper writing did not put the attorney in possession of the premises as mortgagee, under which he could claim the rights of mortgagee in possession. It gave him the power to rent, for the landlord, and in the name of the landlord, and for his benefit, the property in question. The right to use the surplus after paying taxes, etc., was specifically defined, namely, its application upon the mortgage held by the attorney against the true owner. The petitioner, however, has proceeded upon the assumption that this paper made him the landlord, and that when he verbally let the premises to the appellant the relation of landlord and tenant began to exist between him and the appellant. In this, we think, he is mistaken. In order to maintain summary proceedings for the recovery of the possession of real property under section 2231 et seq. ot the Code of Civil Procedure, the technical relation of landlord and tenant must exist. People v. Simpson, 28 N. Y. 55. The tenant dealt with the attorney on the assumption that he was obtaining the premises under a lease from the true owner, Butterfuss, under a contract with Hosley as agent. Under these circumstances, it matters not whether the power of attorney contained an assignment of the accruing rents for the purpose of extinguishing the mortgage, or not; for the question before us is not whether the mortgagee can, by any proceeding, compel the application of the rents upon this indebtedness, but it is, rather, the simple question, who is the proper party to institute summary proceedings for the possession of real property for the non-payment of rent? Under the authority cited, and in the language of the provisions of the Code referred to above, and under the contract as disclosed by these papers, the person to institute such proceedings was the owner himself, and not the agent or attorney in fact. It follows, therefore, that the order appealed from should be reversed, with costs. All concur.  