This action was brought to recover rent pursuant to the' terms of a lease in writing, made May 1, 1902, and terminating May 1, 1923, which was junior to a then recorded mortgage held by plaintiff, executed March 20, 1901. On the 9th of December, 1913, plaintiff brought an action to foreclose the mortgage and joined the defendant, the lessee, and it appeared by attorneys; and on the 24th of April, 1914, a judgment of foreclosure in the usual form was duly entered in the action. The judgment was served on the defandant’s attorneys on May 1, 1914. On May fifth it vacated the premises without having been evicted or any other action on the part of the plaintiff or the landlord. This court on the 16th of October, 1914, reversed an order of the Special Term denying plaintiff’s motion in the foreclosure action to discontinue as to the defendant, and granted the motion. (Metropolitan Life Ins. Co. v. Hydrex Felt & Engineering Co., 164 App. Div. 935.) On the 19th of March, 1915, the premises were sold pursuant to the judgment and were bid in by plaintiff. After the commencement of the foreclosure action and on the 17th of December, 1913, plain*233tiff obtained a formal assignment in writing from defendant’s landlord, the owner of the equity of redemption, of the rent to grow due, and by virtue of the assignment collected the rent until the first of May. This action was brought to recover the rent from May 1, 1914, to and including September, 1915; and for the period prior to the sale it is based on the assignment, and for the period subsequent thereto it is based on plaintiff’s ownership by virtue of the referee’s deed. The plaintiff has recovered for the entire period. In so far as the recovery is for the period after the sale, the judgment cannot be sustained; for this court, in an action by plaintiff’s grantee to recover under the lease for rent for a period subsequent to the date of the conveyance by plaintiff to it — December 31, 1915 — and, by assignment, from the time of plaintiff’s purchase of the premises, being part of the period here 'involved, held that the lease was cut off by the foreclosure sale, on the theory that plaintiff in joining the tenant had so irrevocably elected, and also that this plaintiff and its grantee, the plaintiff in the other action, were estopped from claiming that the lease continued in force, and that upon the entry of the foreclosure judgment the tenant “ was justified in assuming that its lease was to be cut off, and in moving out of the premises * * and “ was not bound, as between itself and the insurance company, or the purchaser at the foreclosure sale, to remain in possession at the risk of being forcibly and summarily ejected.” (Four Hundred Sixty-one Eighth Avenue Co., Inc., v. Childs Co., 181 App. Div. 742.)
I am of opinion, however, that the defendant remained liable for the rent until the sale and conveyance by the reféree pursuant to the foreclosure judgment. The foreclosure action and judgment were notice to the defendant that its lease was to be cut off by the sale and that it might be removed by a writ of assistance if it remained in until after the sale; but the plaintiff as mortgagee had no authority to interfere with the defendant’s possession under the lease until the sale, and it did not threaten so to do, and as assignee of the rents it had no authority to eject the defendant or to disturb its peaceful possession provided it paid the rent, and defendant manifestly was not warranted in quitting possession on account of a demand for rent which was due and owing under the *234lease. Moreover, regardless of whether defendant might have had a defense as against any right of the mortgagee as such, the plaintiff is not here asserting any right claimed to have been derived as mortgagee, but rather the right of the defendant’s landlord, and, therefore/ the sufficiency of the defense must be tested precisely as if the landlord had brought the action. But for the assignment of the rents to plaintiff, there can be no doubt that the landlord could have recovered rent • down to the date his title was extinguished by the referee’s deed.
I, therefore, vote to modify the judgment by confining the recovery to the period from May 1, 1914, to March 19, 1915, at the rate of $666.67 per month, together with interest thereon from the dates when the respective installments became due, and for affirmance as so modified, without costs.
Dowling, J., concurred.
Judgment modified as stated in opinion and as modified affirmed, with costs to appellant. Order to be settled on notice.