Opinion
November, 1904.
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. 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.