#### Joseph E. Kehoe, as Trustee under the Last Will and Testament of Thomas J. Carleton, Deceased, Plaintiff, *v.*Jacob Backer, Defendant.

First Department,

July 10, 1913.

Guaranty and surety—landlord and tenant—agreement extending lease does not release guarantor of original lease—recovery of rents due prior to merger of lease in fee.

Under a submission on an agreed statement of facts, it appeared that plaintiff’s testator, claiming rents due, leased premises for a term of years at a yearly rental, payable monthly, in advance, together with taxes, water charges and insurance; that on the same day the defendant guaranteed in writing the performance of said lease by the lessees; that thereafter, but prior to the expiration of the lease, an extension thereof was made in writing for a certain number of years from the expiration thereof, which the defendant did not guarantee; that thereafter plaim tiff’s testator took a mortgage on the lease, which was thereafter foreclosed by the plaintiff, who bought in the leasehold at the referee’s sale, and that the amounts claimed by the plaintiff became due before entry of judgment in foreclosure.

*Held,*that the agreement extending the lease in no way affected the original lease, and did not release the defendant as surety;

That although the leasehold was merged in the fee by plaintiff’s purchase, it did not affect plaintiff’s claim which matured prior thereto; That a judgment in favor of the plaintiff should be directed for the full amount claimed.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

*John T. Sackett,*for thé plaintiff.

*John E. Donnelly,*for the defendant.

Dowling, J.:

On July 27, 1895, Thomas J. Oarleton, plaintiff’s testator, leased in writing to Joseph Goldstein and Arma Goldstein the premises 114 Columbia street and 272 Stanton street, in the city of New York, for the term of twenty-one years, from August *7931, 1895, at a yearly rental of $1,300, payable monthly in advance, together with taxes and Croton water charges and insurance. On the same day Jacob Backer, the defendant, guaranteed in writing the performance of the lease by the Goldsteins. On March 31, 1898, an extension of the lease was made in writing for five years from August 1, 1916. This was not a new or substituted lease, but an ordinary extension of lease, the original lease still having eighteen years to run, and the extension commencing only at its expiration. This extension Backer did not guarantee. On July 11, 1903, Carleton, who also owned premises on Twenty-fifth street, in the city of Mew York, which the Goldsteins were seeking to buy, agreed to take for his equity therein the sum of $16,000, and as security for the carrying out of the agreement of sale took a mortgage for $6,000 on the aforesaid Columbia street lease. This mortgage, executed by the Goldsteins, was duly foreclosed by plaintiff herein, as trustee of the Oarleton estate, the judgment of foreclosure and sale being entered August 31, 1911. The trastee bought in the leasehold at the referee’s sale thereunder on September 28, 1911, for $500. There is no doubt that when he bought this lease and took the referee’s deed the leasehold merged in the fee. But the amounts which he is claiming here are all sums due before the action in foreclosure reached the stage of judgment. The action was commenced June 18, 1911. The sale took place September 28, 1911. Plaintiff’s claim for rent is for the months of June, July, August and September, the rent under the terms of the lease being payable in advance on the first day of each month. There are further claims for $1,001.53, being the aggregate of the taxes for the year 1910, confirmed October 2, 1910, and of the water rates for 1908, 1909 and 1910, and January, 1911, together with the interest thereon, and for $41.25 insurance premium. The only answer of the defendant to these claims is (1) that the extension of the lease made a new lease and released the surety, for which contention there is no foundation whatever, as the extension agreement in no way affected the original lease, which still remained intact; (2) that the lease merged in the fee, but that being so, it has no more effect on claims which matured before the merger than would a dispossess proceeding.

*794Judgment is directed in favor of plaintiff *for*the full amount claimed, namely, $1,476.10, with interest and costs.

Ingraham, P. J., McLaughlin, Scott and Hotchkiss, JJ,, concurred.

Judgment ordered for plaintiff as directed in opinion, with costs. Order to he settled on notice.