
    Louis Rubenstein, Landlord-Respondent, v. Samuel Rosenthal, Tenant, Peter Doelger, Petitioner-Appellant.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Summary proceedings — Final order — Opening default.
    Landlord and tenant — Re-entry and recovery of possession by landlord — Summary proceedings.
    In summary proceedings against a tenant for non-payment of rent, an order denying a motion by the mortgagee of the tenant’s rights under the lease that the final order in favor of the landlord be vacated and that he be permitted to come in and defend will he affirmed.
    Appeal from an order of the Municipal Court of the city of Hew York, Fourth District, borough of Manhattan, denying a motion by one Peter Doelger to vacate and set aside a final order entered in summary proceedings, and for leave to intervene and defend.
    
      Guggenbeimer, Untermyer & Marshall (Adam K. Strieker of counsel), for appellant.
    Respondent filing no brief.
   Scott, J.

The tenant Rosenthal held from- Louis Ruben-stein a certain house in this city, under a lease made in February, 1904, and running for five years from May 1, 1904. The appellant Doelger, a brewer, took from Rosenthal a mortgage on the lease which was duly filed. It does not appear that the landlord had notice or knowledge of this mortgage, and it is, as we think, immaterial whether he had or not. Rosenthal failed to pay the rent due on January 1, 1906, and, on the nineteenth of January, this proceeding was begun to regain possession of the premises for the default in payment of rent. Doelger was not made a party to the proceeding, and, as the tenant offered no defense, a final order was made and a warrant issued. Doelger, thereupon, moved that the final order be vacated and that he be permitted to come in and defend. From the order denying that motion he appeals. It is not suggested that there is any defense to the proceeding, in the ordinary sense of the term, and it is apparent that Doelger’s real purpose is to get into a position where he can pay the rent and save the lease. Whether or not the final order should now be set aside and the proceeding reopened to let Doelger come in, depends upon whether he was a necessary or a proper party to the proceeding in the first instance, if the landlord had had knowledge of his lien upon the lease. It seems to be quite clear that he was not. Summary proceedings of this character are strictly the creation of statute, and the proceedings therein are regulated by the statute. They are merely possessory in their nature, and it is the very apparent design of the statute that only tenants, or subtenants, or parties actually in possession shall be cited as respondents. Undoubtedly, Doelger might have paid the rent at any time before the issuance of the final order, for the purpose of protecting his security; and, if he had offered to do so, we think that the landlord would have been bound to accept the rent from him. Cole v .Malcolm, 66 N. Y. 363. But he was under no obligation to pay, and the landlord would have had no right to demand payment from him. It is undoubtedly unfortunate for Doelger that he has lost his security, but that he has done so is due to the character of the property upon which he made the loan and upon his own neglect to take any measures to protect himself. He knew the terms of the lease, the amount of the rent, 'and when it was payable. He also knew that for nonpayment the tenant could be dispossessed and the lease canceled. It would not have been a difficult matter for the mortgagee to assure himself, as each rent period arrived, whether the rent was promptly paid or not, and, if necessary, to provide for its payment. The landlord was under no obligation to consult' either the interest or the convenience of the mortgagee of the lease, but was justified, on nonpayment of the rent, to pursue the remedies given him by statute.

The final order must be affirmed with costs.

Text ax and Bischoff, JJ., concur.

Final order affirmed, with costs.  