I agree with Mr. Justice Smith that the plaintiff has not shown facts sufficient to establish his right to a modification of the lease. Furthermore I fail to discover any right to restrain the executors of the Bryce estate from dispossessing the tenant upon non-payment of the rent reserved. The plaintiff’s mortgage was a lien upon the term of the tenant in the lease. It was not paramount but was subordinate to the landlord’s rights under the lease. Upon failure to pay the rent the landlord had the right to dispossess the tenant and any one claiming under it. If the plaintiff desired to protect his rights as mortgagee he should pay the rent due. Until this rent is either paid or a tender thereof made and refused, the plaintiff herein has no right of action against the landlord to restrain the prosecution of the dispossess proceeding.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.