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Kelley v. Osborn

172 A.D. 6 Court First Department, Decision date 1916-03-17 English

Delivered by Scott, J.:

Contents

Majority

p. 6
M. Edward Kelley, Appellant, v. Samuel A. Osborn, Respondent.
First Department,
March 17, 1916.

Headnote

Landlord and tenant —attornment by tenant to purchaser at foreclosure sale — appeal — when decision not reversed because of wrong reason.
A tenant, under a lease subject to a prior mortgage by the owner of the property, who, after foreclosure proceedings, pays rent for several months to the purchaser at the foreclosure sale, thereby effects an attornment within the meaning of section 224 of the Real Property Law, and is liable to the purchaser for rent during the balance of the term of the lease.
A correct decision will not be reversed on appeal merely because it was founded upon a wrong reason, if it can be seen that the ground of the decision has not misled a party to his injury.
Appeal by the plaintiff, M. Edward Kelley, from a determination and judgment of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of
p. 7
November, 1915, reversing a judgment of the Municipal Court of the City of New York, borough of Manhattan, ninth district, in plaintiff’s favor and dismissing the complaint.
M. E. Kelley, for the appellant.
Lester W. Eisenberg, for the respondent.

The facts upon which this judgment rests are simple. Defendant was the lessee of certain property in the city of Brooklyn under a lease which would expire by its terms on May 1, 1915. This lease was subject to a previously executed mortgage by the owner of the property to the present plaintiff. That mortgage was foreclosed and the plaintiff bought in the property. The defendant had been in occupation during all the time of the foreclosure action, paying the rent to a receiver, and as soon as plaintiff took possession of the property or acquired title thereto, which was on July 2,1914, he demanded from defendant the payment of the rent. Defendant hesitated for some time, under advice of his counsel, in consequence of a supposed claim, of the receiver, but that was afterwards cleared up and the defendant paid rent for the months of July, August, September, October, November and December, 1914, and January, 1915. At the end of January he moved out and has refused to pay the rent for the succeeding months between that time and May first, when the lease by its terms would expire. The Municipal Court rendered judgment in favor of the plaintiff. This judgment the Appellate Term reversed ( 92 Misc. Rep. 201 ) and from its determination this appeal is taken.

The undisputed facts present atypical case of an attornment, by which the tenant held from the new owner upon the same terms as he previously held from the lessor. The act of attornment, evidenced by the payment of rent to the new owner and its acceptance by him, amounts to an acceptance of the new landlord by the tenant, and an acceptance of the tenancy by the landlord.

While it is true that under our present statutes the occasion seldom arises for the application of the doctrine of attornment (Commonwealth Mortgage Co. v. De Waltoff, 135 App. Div.

p. 8
33 ; Real Prop. Law, § 223), still it yet survives in certain cases (O’Donnell v. McIntyre, 118 N. Y. 156 , 162), and one of these cases is that which is presented by the facts above stated. It is provided by .section 224 of the Real Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) that an attornment of a tenant to a stranger is absolutely void except in three specified cases, one of which is where the attornment is “to a mortgagee, after the mortgage has become forfeited,” and an attornment by the tenant to the purchaser at a foreclosure sale is within the statute. (Simers v. Saltus, 3 Den. 214 .) The whole subject of attornment was exhaustively examined in Austin v. Ahearne ( 61 N. Y. 6 ), in which precisely the case here presented is cited as a typical case of an attornment under which the tenant assumes the same relation to the purchaser at the foreclosure sale that he previously held to the mortgagor.

The respondent is quite in error in claiming that we may not affirm the judgment upon other grounds than those given by the justice who rendered it.' A correct decision will not be reversed on appeal merely because it was founded upon a wrong: reason, if it can be seen that the ground of the decision has noil misled a party to his injury. (Ward v. Hasbrouck, 169 N. Y. 407 .)

In the present case there is no disputed question of fact, and. it would be absurd to order a new trial.

The determination of the Appellate Term is reversed and the judgment of the Municipal Court affirmed, with costs in this court and at the Appellate Term to the appellant.

Clarke, P. J., Laughlin and Smith, JJ., concurred.

Determination of Appellate Term reversed and judgment of the Municipal Court affirmed, with costs in this court and at the Appellate Term.

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