
    Clark W. Dunlop, Respondent, v. Frederic T. James, Appellant.
    
      Landlord and tenant—right of a mortgagee of a leasehold to pay the rent which the tenant’s assignee has assumed and to sue the assignee therefor—basis of such right.
    
    Where a lease for a term of twenty-one years contains a covenant obligating the lessee and its assignee to pay a stipulated rent and the taxes assessed upon the premises during the term of the lease, and authorizes the lessor to re-enter in case of a breach of said covenant, a mortgagee of the leasehold interest, in the event of the failure of an assignee of the lease, who took the same subject to the “rents, covenants, conditions and provisions therein,” and also subject to the mortgage, to pay the rent and taxes in compliance with the covenant, may pay such rent and taxes and then maintain an action against the assignee to recover the amount so paid.
    Such right is not based upon any contract relation between the mortgagee and the assignee of the lease, but rests upon the mortgagee’s right to protect his interest in the estate.
    Appeal by the defendant, Frederic T. James, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of May, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 7th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      John P. Everett, for the appellant.
    
      O. J. Wells, for the respondent.
   McLaughlin, J.:

In April, 1890, the Rector, Church Wardens and Vestrymen of Trinity Church leased for the term of twenty-one years certain real estate in the city of New York to Peck, Stow & Wilcox Company. The lease contained a covenant to the effect that the lessee and its assigns would pay the rent stipulated ■ and also the taxes assessed upon the premises during the life of the lease, and also provided for a re-entry by the lessor in case of a failure to make these payments.

By mesne assignments the lease .was acquired by the defendant in this action, who took the same subject to the “ rents, covenants conditions and provisions therein also mentioned,” and also subject to a mortgage then held by the plaintiff upon the leasehold estate. While the defendant was the owner of the leasehold estate, ground rent became due to the amount of $1,125, and taxes payable to the amount of $1,362.62, which sums the defendant having neglected and refused to pay, notwithstanding he was requested to do so, were paid by this plaintiff to protect his interest in the estate, and thereupon he brought this action to recover from the defendant the amount paid.

At the close of the case the learned justice at Trial Term directed a verdict for the plaintiff for the amount claimed, and the defendant has appealed. The judgment is right. The defendant, as the owner of the leasehold estate, as well as under the covenants contained in the lease, which he expressly agreed to perform when he took his assignment, was obligated to pay the rent and taxes (People ex rel. White v. Loomis, 27 Hun, 328; Pardee v. Steward, 37 id. 259; Sayles v. Kerr, 4 App. Div. 150), and he having failed to perform that obligation, the plaintiff, in order that he might protect his interest in the estate, had the right to make such payments, and when he did he became, by operation, of law, subrogated, to this extent, to the rights of the lessor, and he could thereafter enforce his claim against the defendant in the same way and to the same extent that the lessor could had such payments not been made. This right the plaintiff had, not by reason of any contract relation with the defendant, but because of the fact that it was necessary for him to make good the default of the defendant in order that his own property rights might be preserved.

The judgment, therefore, must be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment affirmed, with costs.  