20 N.Y.S. 855 | New York Court of Common Pleas | 1892
The Lexington Improvement Company, as owner of the premises 128 East Thirty-Fourth street, in the city of Ne.w York, by mortgage dated November 27, 18,88, and recorded on the next succeeding day, mortgaged the same to the Washington Life Insurance Company, and by indenture dated April 1, 1891, leased a portion of the same premises to Arthur L. Meyer, its manager, for 18 months from said April 1,1891, at the monthly rental of $250, payable in advance. Subsequently to the mortgage the mortgagor became indebted to Meyer in the sum of $1,500 for salary, and to his wife in the sum of $2,200 for money loaned, and in September, 1891, the president of the mortgagor and Meyer, its manager, claiming to act under authority from the mortgagor, entered into an arrangement, whereby the unmatured rent reserved was appropriated and applied in extinguishment of the mortgagor’s indebtedness to Meyer and his wife. Thereafter the mortgagee commenced its action to foreclose the mortgage, to- which Meyer, who was also an obligor under a junior mortgage, was made a party, wh ch action terminated in a judgment of foreclosure and sale, in the execution of which Marcell us Hartley, the landlord, and respondent in these proceedings, became the purchaser; and by deed dated and recorded January 13, 1892, the mortgaged premises were conveyed to him “subject to all valid leases of said premises made prior to the 12th day of October, 1891.” Thereafter Hanley demanded payment of Meyer, the tenant and appellant herein, of $250 for one lÜonth’s rent, which, pursuant to the terms of Meyer’s lease, would have matured on February 1, 1892, and, default having been made in such payment, pursuant to the provisions of sections 2231 and 2235 of the Code of Civil Procedure, for such cases made and provided, instituted summary proceedings to recover possession of the demised premises. On the tiial the tenant urged the arrangement with the mortgagor, whereby all the uiimat ured rent reserved by his lease was credited to it in payment of its indebtedness » to the tenant and h:s wife, in refutation of the alleged default, it being conceded that the rent maturing on February 1, 1892, was not otherwise paid; but the learned trial justice, being of the opinion that the evidence was insufficient to establish the authority of the president and manager of the mortgagor to enter into the arrangement on its behalf, directed a final order to issue awarding delivery of the possession of the demised premises to Hartley, from which an appeal is tak n to us. In our opinion, all inquiry touching the authority of the officers of the mortgagor to make the arrangement above mentioned, and the right of tile purchaser under the foreclosure sale to attack such authority, is immaterial, and, for the purposes of determining the question involved on this appeal, it may be assumed both that the officers mentioned did not transcend the legitimate exercise of their respective functions, and that the purchaser is not in a posilion to assail their authority; but while this may be so, the mortgagor’s officers did not undertake to conclude the mortgagee from any rights which he, or the successor of his interests, might have to the enjoyment of future accruing rents, nor could they have done so without the mortgagee’s or his successor’s assent. The mortgage, whether it be regarded as an estate in, or only as a lien upon, the mortgaged premises, operated as a transfer of the reversion after the mortgagor’s default and foreclosure, to which the enjoyment of the rents was but an incident, •and its record was notice of that fact to the lessee; and if, despite such transfer and notice, the lessee chose to anticipate the unmatured rent by payment to the mortgagor without the mortgagee’s assent, he should be considered as having done so at his own peril. The acceptance of a conveyance, “subject to all valid leases of said premises, made prior to the 12th day of October, 1891,” implies nothing more than a recogn.tion by the purchaser at the foreclosure sale of leasehold estates carved outof the reversion upon performance of the conditions subject to which they were granted, and had the effect of .'placing tile lessees in the condition of lessees under leases made before the mortgage foreclosed, with the same rights, no more and no better. Lessees
