Opinion
March, 1920.
Ingram, Clark, Taylor Schenck, for Jennie W. Singerman, purchaser under the judgment of foreclosure.
Emil P. Korkus, for tenant, Samuel Gordon.
This is a motion on behalf of the purchaser under a judgment of foreclosure to put the purchaser in possession of the premises sold under the judgment as against the tenant, who is not a party to the action, now in possession of said premises and who has been continuously in possession of said premises since May 1, 1915, prior to the filing of the summons and complaint and lis pendens in the foreclosure action.
Briefly stated the facts are as follows: On July 24, 1914, the Benn Riegel Contracting and Supply Company filed a mechanic's lien in the sum of ninety-two dollars and sixty-five cents against the premises in question, then owned by one Jeannette Seigel. On September 24, 1914, Jeannette Seigel conveyed the said premises to one Philip Andron. In the month of April, 1915, the said Philip Andron leased the premises in question by a written lease to one Samuel Gordon for the term of one year, and the said Samuel Gordon entered into possession on the 1st day of May, 1915, and has ever since continued and is now in possession of said premises. On May 28, 1915, subsequent to the time that the said Samuel Gordon took possession of the premises under the aforesaid lease the Benn Riegel Contracting and Supply Company filed a summons and complaint and notice of pendency of action for the foreclosure of the mechanic's lien, in which action. Jeannette Seigel, the former owner, and Philip Andron, the then owner, were made parties defendant. The tenant Samuel Gordon was not made a party to the action, nor was the notice of pendency of action indexed against him. For some reason not explained by the affidavits on this motion a judgment of foreclosure and sale in the aforesaid action was not entered until the 6th day of September, 1919. The tenant Samuel Gordon continued in possession under a lease from year to year from the 1st day of May, 1915, and is now in possession of the premises in question under a lease expiring May 1, 1920. It appears from the affidavits that Philip Andron, one of the defendants in this action, on October 8, 1918, conveyed the premises to his brother, Frank Andron, and that thereafter on April 27, 1919, Frank Andron leased the premises in question to the said Samuel Gordon for the term of one year expiring May 1, 1920. It is urged by the attorney for the purchaser that the tenant Samuel Gordon was not a necessary party to the foreclosure action, and that as he is now holding under a lease from a grantee to whom the premises in question were conveyed subsequent to the filing of the notice of pendency of action he is bound by the notice, and that an order should be granted directed to the sheriff to remove him and to put the purchaser in possession. The premises were sold under the judgment of foreclosure on the 15th day of December, 1919, to one Miles F. Gordon, a stranger to the action, and thereafter the said Miles F. Gordon assigned his bid to Jennie W. Singerman, to whom the premises were conveyed on December 16, 1919, by the referee under the judgment of foreclosure. This motion is made for an order to put the said Jennie W. Singerman in possession of the premises. The motion was originally made on the 5th day of February, 1920, and was denied. Subsequently, a motion was made for reargument and a reargument was granted, on which motion an order was asked for vacating the previous order and granting the motion for an order to put the purchaser in possession of the premises in question. The reargument has failed to convince me that the order should be granted. The provision upon which the moving party relies is section 1675 of the Code of Civil Procedure, which provides: "If a party, or his representative or successor, who is bound by the judgment, withholds possession from the person thus declared to be entitled thereto, the court, * * * may, in its discretion, by order, require the sheriff to put that person into possession of the property." If the tenant Samuel Gordon had been made a party to the action and had refused to surrender possession the order putting the purchaser in possession might well have been granted.
In the case of Davidson v. Weed, 21 A.D. 579, 581, the court said: "We think, therefore, that the court had no power to remove the tenant who was in possession of the property under a valid lease executed by the owner prior to the commencement of the foreclosure action and who was not a party to such action."
The tenant having entered into possession prior to the commencement of the foreclosure action under a written lease had a property interest and should therefore have been a party to the foreclosure action. His possession was notice even though his lease was not recorded. It cannot be claimed that he is bound by the judgment of foreclosure. He has not had an opportunity of having his day in court. Based on the facts as set forth the court is not justified in granting an order putting the sheriff in possession. Under section 1675 of the Code of Civil Procedure the order contemplated is discretionary and supersedes the former writ of assistance. The order contemplated by this section of the Code is an order directed against a party to the action or his representative or successor and not against a tenant who enters into possession of the premises under a lease prior to the commencement of the foreclosure action and whose possession is continuous. The reason why a tenant should be made a party to a foreclosure action is obviously that he may be bound by the judgment in foreclosure and that he may have the opportunity of asserting in the action any rights that he may have, in order that his rights, whatever they may be, may be properly adjudicated. To hold otherwise might result in the tenant being summarily removed by an order such as is asked for here without having any opportunity of asserting his rights. This would certainly not be equitable.
The motion therefore to vacate the order entered and filed herein on the 19th day of February, 1920, which order denied the motion made on behalf of the purchaser to put her in possession, is hereby denied.
Motion denied.