The real question in this case is on the appeal from the judgment determining that the tenant, Wuttge, had no interest in the lease at the time of the commencement of the action and granting a barren foreclosure against the tenant’s interest only.
The tenant, Wuttge, having granted to plaintiff an interest in the leasehold by way of mortgage, had no right or power to destroy the interest by surrendering the lease to the landlord. (Rector, etc., Christ P. E. Church v. Mack, 93 N. Y. 488; Keeler v. Keeler, *359102 id. 30; Eten v. Luyster, 60 id. 252; Allen v. Brown, 5 Lans. 280.) The learned trial justice recognized this rule of law but was of opinion that the delay of fourteen months in bringing the, action was such laches as would make it inequitable to enforce the mortgage against the landlord. We cannot concur in this conclusion. If the landlord had procured the issuance and execution of the warrant in the dispossess proceedings, the mortgagee would have had the right to redeem for his own benefit at the end of a year. (Code Civ. Proc. § 2257.) The statutory right to redeem was destroyed by the surrender and acceptance of the lease and the discontinuance of the dispossess proceedings by the landlord, although the mortgagee had already filed his notice of intent to redeem. Had the warrant been issued and executed at the earliest possible day, the mortgagee would not have been entitled to redeem until February 20, 1921, and the date of the summons in the action is April 5, 1921. Equitable relief to which a party is otherwise entitled cannot be denied for laches in delaying to seek it, unless the delay has occasioned loss or hardship to the party who invokes the doctrine of laches or misled him to his injury. (Tynan v. Warren, 53 N. J. Eq. 313; Weseman v. Wingrove, 85 N. Y. 353.) In this case the landlord was not misled by plaintiff’s delay and suffered no loss therefrom. The final order of dispossess was entered February 20, 1920. The surrender of the premises was without knowledge of the mortgagee; and eight days thereafter, on February twenty-eighth, without notice to the plaintiff, the premises were relet by the landlord. The course adopted by the landlord resulted, if this judgment be sustained, in the destruction of a valuable mortgage interest in the leasehold and an unjust enrichment of the landlord at the expense of the mortgagee. As between plaintiff and defendant Klages the lease is still in existence and subject to the mortgage.
The judgment is reversed on the law, with costs against defendant Klages, and judgment of foreclosure directed for plaintiff, with costs.
Present — Blackmar, P. J., Kelly, Jaycox, Manning and Kelby, JJ.
Judgment reversed on the law, with costs against defendant Klages, and judgment of foreclosure unanimously directed for plaintiff, with costs.