
    Utility Realty Company, Respondent, v. James H. Dugan, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1916.)
    Foreclosure — of mortgages — when tenant made party — landlord and tenant.
    Where in an action to foreclose a mortgage upon "leased premises the tenant is made a party defendant, the judgment of foreclosure and sale abrogates the lease.
    Where, without the knowledge of the purchaser of the premises on the foreclosure sale, the tenant continues in possession and pays the rent to the same agent as before, the fact is not sufficient to hold him as a tenant under the original lease, and the tenant is justified in removing from the premises in the absence of agreement express or implied to become the new owner’s tenant, and a consent of the new owner to accept him as a tenant.
    Appeal by. defendant from a judgment of the Municipal Court, of the city of New York, borough of Manhattan, ninth district, in favor of the plaintiff.
    
      Richard S. Treacy, Jr., for appellant.
    Samuel Slonim, for respondent.
   Gavegan, J.

Defendant appeals from a judgment of the Municipal Court in favor of plaintiff for the sum of seventy dollars and costs, representing two months ’ rent. On August 12,1914, defendant rented an apartment in the building known as No. 601 West One Hundred and Ninety-first street, New York city, under a lease in writing from the then owner thereof, by the terms of which defendant was to become a tenant for a period of one year beginning October 1, 1914. Defendant entered into possession and paid the rent reserved up to April 1,1915, when he moved out.

Prior to making said lease with defendant the owner had executed a mortgage on the premises in question. Default having been made in the payment of interest the mortgagee commenced an action to foreclose on August 12,1914, naming the defendant herein as a defendant in that action. A judgment of foreclosure resulted pursuant to which the property was sold to the mortgagee who took possession thereof on or about the 15th-day of January, 1915, under a referee’s deed. On the same day the mortgagee sold the property to plaintiff who was the owner thereof at the time the alleged cause of action herein arose.

The defendant remained in possession during the pendency of the foreclosure action and until the following March, paying rent to the same agent. No ex.press agreement of any kind was entered into between •plaintiff and defendant and no mention was made as to the terms under which defendant was to remain in plaintiff’s premises.

- No witnesses were called and the case was submitted ;to the trial judge on the facts' stipulated. Upon said stipulation the trial judge gave judgment for the plaintiff for rent for the unexpired term of the lease, less the amount received from a new tenant. He was of the opinion that upon the facts in the case defendant attorned to plaintiff as his new landlord thereby impliedly agreeing to' continue under the terms of the original lease.

I am of the opinion, in view of the fact that defendant was made a party to the foreclosure action which resulted in the judgment and sale as aforesaid, that the lease between the defendant and the former owner of the property was abrogated. Commonwealth Mortgage Co. v. De Waltoff, 135 App. Div. 33; Fletcher v. McKeon, 71 id. 278; Wiltse Mortgage Foreclosure, § 177; Simers v. Saltus, 3 Den. 214. In the case of Commonwealth Mortgage Co. v. De Waltoff, sufra, at page 35, Mr. Justice Scott writing for the court said: “ If the respondent had been made a party to the foreclosure action, his lease, being subsequent and subordinate to the mortgage, would have been annulled and his continuance in possession would have been unlawful.” This language is applicable to the present case. Plaintiff did not choose to declare defendant’s possession unlawful but permitted him to remain.

We must therefore consider upon what terms defendant was to remain. Conceitedly no express agreement was ever made between plaintiff and defendant. In fact it does not, appear that defendant knew plaintiff was the owner of the property and the only recognition of plaintiff’s ownership by defendant was the payment of rent, to plaintiff’s agent who was also agent for the former owner.

The mere fact that defendant paid rent to the agent was not sufficient, to hold him as a tenant under the terms of the original lease. Kelly v. Osborn, 92 Misc. Rep. 201. There must have been.some agreement either express or implied on the part of the d'efendant to become the new owner’s tenant for the balance of the term and a consent by the new landlord to accept as a tenant under said terms. O’Donnell v. McIntyre, 37 Hun, 623, 625. No such agreement was shown or attempted to be shown.

It follows that the defendant was justified in removing from the premises and the judgment must be reversed with thirty dollars costs and the complaint dismissed with costs.

Guy and Bijur, JJ., concur.

Judgment reversed, with thirty dollars costs.  