Majority
p. 255Ambrose K. Ely, Plaintiff, v. Thomas J. Collins et al., Defendants. (Supreme Court, New York Special Term, November, 1904.)
Headnote
Eight of a tenant, whose lease has been extended, in the surplus money arising in an action of mortgage foreclosure the sale on which has terminated the leases.Where, prior to the expiration of a lease for a term of years, .the lessor executes to the lessee another lease of the premises for an additional term of years beginning on the expiration of the former lease, the lessee is entitled to continue in the possession of the premises until the expiration of the original lease as though such original lease had been made for the term covered by both leases.
If, prior to the expiration of the term demised by the original lease, the lessee’s right of possession under both the leases is cut off by the foreclosure of a mortgage executed by the lessor, the lessee’s claim to be reimbursed out of the surplus moneys arising on the foreclosure sale for the damages resulting from the termination of the leases is superior to that of the owners of the equity of redemption.
Motion for an order confirming the report of a referee respecting the distribution of surplus moneys arising from the sale of real estate in an action for the foreclosure of a mortgage.
Cohen Brothers, for plaintiff.
Campora & Thiery, for claimant Elisa Caruso.
Thomas F. Keogh, for defendant Mary K. Collins.
This is a motion for an order confirming the report of a referee respecting the distribution of surplus money arising from the sale of real estate in an action for the foreclosure of a mortgage thereon. The confirmation is opposed upon several grounds, but I shall consider but one of them, deeming the others unimportant.
p. 256
At the time of the foreclosure sale, February 18, 1904, one of. the defendants, Elisa Caruso, was in possession of the mortgaged premises under a lease which had been executed and delivered to her by a former owner of the fee. This lease by its terms expired November 1, 1904. On the 14th day of June, 1902, while Caruso was in possession under this lease, the then owner of the fee, Mary A. F. Collins, the mortgagor in the mortgage foreclosed in this action, executed and delivered to the tenant, Caruso, a further lease of said premises for three years, from November 1, 1904, upon substantially the same terms as those expressed in the lease under which she was then enjoying the possession of the premises. Thereafter the lessor, Mary A. F. Collins, died intestate, and her legal representatives, the owners of the equity of redemption, are defendants in this action. The lessee’s right of possession under both leases was disturbed and cut off by the foreclosure sale, and for the damage suffered by her in consequence thereof the referee has sustained her claim to the surplus money as being superior to that of the defendants, who are the owners of the equity of redemption. In this the referee’s finding is correct. The tenant, Caruso, was entitled, as against Mary A. F. Collins and those claiming through her any interest in the real estate, to the undisturbed possession thereof until November 1, 1907. She was in possession, and the lease to take effect November 1, 1904, gave her the right to continue in that possession as though the original lease had been made for a term expiring November 1, 1907. This view is supported by Larkin v. Misland, 100 N. Y. 212 , and Clarkson v. Skidmore, 46 id. 297 .
Motion granted.
Cases cited
- Larkin v. Misland 100 N. Y. 212 p. 256