Since the Union Exchange National Bank, against which the action has been discontinued, is no longer a party, a decree of foreclosure would be a nullity as to' it (Brainard v. Cooper, 10 N. Y. 356, 358), and since that bank would not be bound by such a decree, the title which would be received by any purchaser on the foreclosure sale would be subject to the rights of the bank under its lease, the original term of which does not expire until May 1, 1922. Such a situation impairs the defendant Treo Company’s right to an unimpaired equity of redemption. Furthermore, where the breach of a covenant for quiet enjoyment is due to the foreclosure of a mortgage on the property, a tenant is entitled to recover substantial damages, measured by the value of the unexpired term, less rents reserved, and to look for reimbursement to the surplus moneys which may be realized on the foreclosure sale. Mack v. Patchin, 42 N. Y. 167, 172; Clarkson v. Skidmore, 46 id. 297. The defendant Treo Company is therefore interested in having the property bring, on the foreclosure sale, the best possible price. There is good reason to think that this cannot be accomplished if the property must be sold subject to the lease of the Union Exchange National Bank. The motion will be granted on the following terms: Unless the plaintiff stipulate that it will discontinue the action against the defendant Treo Company, the latter will be permitted to serve and file an amended answer, a copy of which is annexed to the moving papers.
If the plaintiff concludes to discontinue the action as against the defendant Treo Company, Inc., the motion *128for a reference will be granted; otherwise it must be denied because of the service of - the amended answer.
Ordered accordingly.