Opinion
April 19, 1943.
Order denying appellants' motion to dismiss the amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Plaintiff was the lessee and defendant Moskowitz the lessor of certain premises. The lease contained a covenant for quiet enjoyment expressly conditioned "upon the retention of title to the premises by the landlord." Prior to the expiration of the term the owner defaulted in the payment of interest and taxes and the mortgagee — not a party to this action — foreclosed its mortgage, which was a lien superior to the lease. The mortgagee purchased the property at the sale pursuant to the judgment in the foreclosure action. Subsequently, the mortgagee obtained an order of assistance and plaintiff was evicted. Under the circumstances, the lessor was relieved of his obligation under the covenant and plaintiff's loss of possession does not give rise to a cause of action based on an alleged breach of the covenant by the lessor or the appellants who, it is alleged, are the landlord's undisclosed principals. Nor does the amended complaint set forth facts sufficient to constitute a cause of action in tort for conspiracy. The several overt acts alleged in support of the plaintiff's claim that its loss of possession was the result of a conspiracy on the part of the defendants, do not, in our opinion, support such a claim. Appeal from the order denying appellants' motion to strike the cause from the reserve calendar dismissed, without costs. Close, P.J., Hagarty, Johnston, Taylor and Lewis, JJ., concur.