
    Samuel Wacht, Respondent, v. Albert R. Erskine, Appellant.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Foreclosure of mortgages on land — Foreclosure by action and sale — Sale — Title or interest acquired by purchaser — Title of lessee not party to foreclosure.
    Landlord and tenant — Creation and extent of relation — Attornment — When required to create tenancy — Necessity of attornment to purchaser at judicial sale of landlord’s estate.
    The rights of a tenant are not affected by the foreclosure of a prior mortgage, unless he was a party to the suit.
    .Where the referee’s deed on such foreclosure expressly conveyed the premises subject to the leasehold interest and the tenant never attorned to the purchaser, no privity of estate or of contract exists between the purchaser and the tenant, and the purchaser cannot maintain an action for rent tinder the lease.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.
    
      Earl Bryant Barnes, for appellant.
    Arnstein & Levy, for respondent.
   Seabury, J.

This action is brought to recover rent fir the months of March and Api’il of 1908, for a certain apartment in the premises known as Hawarden Hall in the box'ough of Manhattan. The plaintiff purchased the premises referred to under a judgment in foreclosure in an action which he brought to foreclose a certain mortgage executed by the defendant’s lessor. The lease under which the defendant occupied the premises was made subsequently to the execution of the mortgage which the plaintiff caused to be foreclosed. The plaintiff secured a deed to the premises in question from the referee appointed in the action of foreclosure, on March 3, 1908. . The deed conveys the premises to the plaintiff subject to a mortgage of $180,000 and “ leases, if any, tenancies of the present occupants.” The defendant was not made a party to the foreclosure action, and the present action was commenced by the plaintiff after the delivery of the referee’s deed to him. Upon the trial the judgment in the action of foreclosure was not offered in evidence, the plaintiff contenting himself with offering only the referee’s deed. As the defendant was not made a party to the foreclosure suit his rights under the lease were not affected by the decree in that action (Davidson v. Weed, 21 App. Div. 579); and the referee’s deed, given as a result of the judgment in that action, expressly conveyed the property to the plaintiff subject to the leasehold interest of the defendant. The defendant has never attorned to the plaintiff, or done any act which could be construed as a consent to or an acceptance of the plaintiff as landlord, or made any agreement with him in reference to the premises, the possession of which the defendant now enjoys. Ho privity of estate or of contract exists between the plaintiff and the defendant, and there is no basis upon which the plaintiff can maintain this action. In McKircher v. Hawley, 16 Johns. 289, Spencer, Ch. J., said: “ Having already decided that there exists no privity between the mortgagee and one holding under the mortgagor by a conveyance subsequent to the mortgage, we have, in effect, decided the' present question; for it would seem to be an incontestable proposition, that no man can distrain for rent, unless a privity of contract or of estate exists between him and the party of whom rent is claimed.” In Simers v. Saltus, 3 Den. 214, Jewett, J., said: “If the mortgagor, subsequent to the mortgage, lease the premises, the mortgagee cannot destrain or sue for rent, because there is no privity of contract Or of estate, between the mortgagee and tenant, unless the tenant attorn to the mortgagee after the mortgage has become forfeited, which he may do.” In Sprague National Bank v. Erie R. R. Co., 22 App. Div. 526, Bradley, J., said: “ By the foreclosure and sale the equity of redemption of the mortgagor was cut off, and thus the defeasance taken from the mortgagor as of the time the lien of it was created. Rector, etc. v. Mack, 93 N. Y. 488; Batterman v. Albright, 122 id. 484. It necessarily follows that, as no privity of contract or estate existed between the mortgagee and lessee, none as between thé lessee and the purchaser resulted from the purchase and the master’s deed, thereupon made, to support any action by either against the other upon the covenants in the lease in any event.”

These authorities demonstrate that the judgment appealed from should be reversed.

The judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve and MacLean, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  