Chumar v. Melvin , 105 N.Y.S. 27 ( 1907 )

Blanchard, J.

This is an action to foreclose a mortgage upon a leasehold, of which the defendant Osear F. Shaw was owner at the time of the commencement of the action. The defendant raises two objections: First, that the present action is improperly prosecuted in the name of the plaintiff individually instead of the plaintiff as executrix; and second, that since the plaintiff obtained in September, 1906. after the defendant Shaw, had been dispossessed for default, in payment of rent, a new lease from the landlord for the whole unexpired period, and is now in possession thereunder, there has been a merger of the mortgagee’s interest in her present term, and consequently that there is nothing to foreclose. The first point above mentioned was raised upon appeal from an order of the Special Term denying a preference in the trial of this action, and was, fdr the purpose of that motion, determined against the defendant. Since the complaint shows, clearly that the plaintiff is suing as executrix, it seems that these objections cannot avail at this stage of the case. The second point above mentioned is untenable. According to section 2256 of the Code of Civil Procedure the defendant Shaw, the dispossessed lessee, “ may, at any time within one year after the execution of the warrant, pay or tender * * "x" all rent in arrear. * * *. Thereupon the person making the payment or tender, shall be entitled to the possession of the demised premises.” According to section 2257 the plaintiff, as mortgagee of said lessee, can redeem the premises only “ If a redemption is not made by the lessee ” within said period ; and the plaintiff may exercise this right only “ before two. o’clock of the day * * * next succeeding the last day ” of the lessee’s period of redemption. In the present position of affairs, therefore, the defendant Shaw may at any time within the period above mentioned redeem his lease as above described and oust the plaintiff. This right now enjoyed by the defendant Shaw is outstanding and has not been merged in the plaintiff’s term. It is a proper submet for the present action of foreclosure, and the motion to dismiss the complaint is, therefore, denied. Accordingly judgment is rendered for the plaintiff.

Judgment for plaintiff.