#### City Bank of Bayonne, Plaintiff, *v.*Julius G. Hocke and Others, Defendants, Impleaded with West Side Laundry Company, Appellant, and Directors Investment Company, Respondent.

First Department,

June 4, 1915.

Real property—recording acts—lease for a term exceeding three years — open possession of lessee under unrecorded lease — constructive notice to subsequent incumbrancer—foreclosure of subsequent mortgage—writ of assistance to eject lessee.

A lease for a term exceeding three years is a conveyance and must be recorded as required by the Real Property Law in order to be valid as against subsequent purchasers in good faith and for a valuable consideration.

*84But where a tenant is in open, visible and continuous possession under a lease for a term exceeding three years, one taking a subsequent mortgage upon the premises is charged with constructive notice of the prior lease, although it is not recorded, and is not an incumbrancer in good faith within the meaning of the Recording Act.

Hence, under such circumstances, although a judgment of foreclosure of the subsequent mortgage, which was recorded, has been entered on a summons and complaint in which no personal claim was made against the lessee which was named defendant, the purchaser on foreclosure, or its grantee, is not entitled to a writ of assistance to eject the lessee from the premises.

Moreover, the rights of the lessee as against the subsequent mortgagee under its prior unrecorded lease will not be determined upon affidavits in a summary proceeding for a writ of assistance.

Appeal by the defendant, West Side Laundry Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1915, directing that a writ of assistance issue to the sheriff to eject and remove the appellant from certain premises.

*Forrest S.*Chilton, for the appellant.

*Walter Loewenthal*of counsel *[Bernheim & Loewenthal,*attorneys], for the respondent.

Clarke, J.:

Julius GL Hocke was the owner of premises 509-513 West Fiftieth street. He was also the president of the West Side Laundry Company. This company had been openly occupying a portion of this building for some years, as a laundry, exhibitng its sign thereon, “West Side Laundry Co.” On the 1st of May, 1913, Hocke made a written lease of the portion of the premises occupied by the laundry to John O’Mara for ten years from said date, with the privilege of renewal for a further term of ten years, at a yearly rental of $6,194. This lease was not recorded. O’Mara was then the secretary of the West Side Laundry Company, and said lease was made for the benefit of the corporation. The lease was on the same day, May first, assigned by O’Mara to the laundry company, which accepted said lease and remained in possession of said premises and has *85still continued therein. On the 3d day of May, 1913, Hocke made a mortgage to the City Bank of Bayonne of said premises for the sum of $82,000. An action was commenced to foreclose said mortgage and the West Side Laundry Company was made a defendant, but there were no allegations in the complaint in reference thereto except the prayer that the defendants and all persons claiming under them or any of them subsequent to the filing of the notice of the pendency of the action may be barred and forever foreclosed of and from all right, title, interest, claim, lien and equity of redemption in and to the said mortgaged premises.

There was also served upon the laundry company a summons with notice that the plaintiff “makes no personal claim against you in this action.”

This action went to judgment which ordered that each of the defendants in this action and all persons claiming under them or any of them, after the filing of such notice of *Us pen-dens,*or after the filing of such amended notice of *Us pen-dens,*be and hereby are forever foreclosed of all right, claim, lien, title, interest and equity of redemption in and to the aforesaid premises and each and every part thereof.

The property was sold by the referee and bought in by the City Bank of Bayonne, the deed being dated and recorded on the 19th day of November, 1914. On the 5th of February, 1915, the bank conveyed to the Directors Investment Company. The bank collected the rental from the laundry company from June, 1914, until the date of the deed from the referee, and continued, from said date, November 16,1914, up to and including the 1st of February, 1915, to accept the stipulated rentals from the laundry company. A number of demands were made by the Directors Investment Company upon the laundry company to get out which were not complied with. Finally this proceeding was brought on by order to show cause why a writ of assistance should not issue. From the order granting the writ this appeal is taken by the laundry company.

The appellant claims that the lease though unrecorded is good as against the mortgage because of its priority in time and possession under it by the defendant. *Phelan*v. *Brady*(119 N. Y. 587) was an action to foreclose a mortgage upon *86certain premises given by M. who held an apparently good title to the same, but who had before the execution of the mortgage conveyed the premises to B. who was in possession, and, with her husband, occupied two rooms in the building on the premises. Her deed was not recorded until after the mortgage was given. In affirming a judgment dismissing the complaint the court said: “ Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world of the existence of any right which the person in possession is able to establish. ” In *Trustees of Union College*v. *Wheeler*(61 N. Y. 88) it was held that the “actual occupancy by the purchasers under the contracts of sale is constructive notice to the mortgagee of their rights” and that “an assignee of one of the contracts of sale who takes subsequent to the recording of the assignment of the mortgage is not affected thereby, but stands in the place of his assignor.”

The respondent claims that the lease from Hocke to O’Hara under which the West Side Laundry Company claims possession, being for a term exceeding three years, and not having been recorded, was void as against the mortgagee, whose mortgage was first duly recorded. There is no question but that the lease for a term exceeding three years is a conveyance.

Section 291 of the Real Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) provides: “Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded.”

In *Phelan*v. *Brady (supra)*the court said: “At the time of the execution and delivery of the mortgage to the plaintiff, the defendant Mrs. Brady was in the actual possession of the premises under a perfectly valid but unrecorded deed. Her title must, therefore, prevail as against the plaintiff. It matters not, so far as Mrs. Brady is concerned, that the plaintiff in good faith advanced his money upon an apparently perfect record title of the defendant John E. Murphy. Nor is it of any consequence, so far as this question is concerned,- whether the plaintiff was in fact ignorant of any right or claim of Mrs. *87Brady to the premises. It is enough that she was in possession under her deed and the contract of purchase, as that fact operated in law as notice to the plaintiff of all her rights.

“ It may he true, as has been argued by the plaintiff’s counsel, that when a party takes a conveyance of property situated as this was, occupied by numerous tenants, it would be inconvenient and difficult for him to ascertain the rights or interests that are claimed by all or any of them. But this circumstance cannot change the rule. Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world of the existence of any right which the person in possession is able to establish. [Citing cases.] * * The plaintiff’s loss is to be attributed to his confidence in Murphy, who probably deceived him, and to his failure to take notice of Mrs. Brady’s possession.”

In *Brown*v. *Volkening*(64 N. Y. 76) the court said: “The statute makes void a conveyance not recorded only as against a subsequent purchaser in good faith and for a valuable consideration. (1 R. S. 756, § 1.) Actual notice of a prior unrecorded conveyance, or of any title, legal or equitable, to the premises, or knowledge and notice of any facts which should put a prudent man upon inquiry, impeaches the good faith of the subsequent purchaser. There should be proof of actual notice of prior title, or prior equities, or circumstances tending to prove such prior rights, which affect the conscience of the subsequent purchaser. Actual notice, of itself, impeaches the subsequent conveyance. Proof of circumstances, short of actual notice, which should put a prudent man upon inquiry, authorizes the court or jury to infer and find actual notice. The character of the possession which is sufficient to put a person upon inquiry, and which will be equivalent to actual notice of rights or equities in persons other than those who have a title upon record, is very well established by an unbroken current of authority. The possession and occupation must be actual, open and visible; it must not be equivocal, occasional, or for a special or temporary purpose; neither must it be consistent with the title of the apparent owner by the record.”

The possession and occupation in the case at bar satisfies the *88rule as laid down. The respondent is not aided by the foreclosure judgment. While the laundry company was made a party defendant, the complaint contained no allegations as to it, no issue was tendered, and the summons served upon it specifically stated that no personal claim was made against it.

*Stillwell*v. *Hart*(40 App. Div. 112) was an appeal from an order directing the issuance of a writ of assistance to place the purchaser at the foreclosure sale in possession of the premises. The court said: “The mortgage, which was the subject of the foreclosure action, bore date December 22, 1890, and Webster, who now claims to be a prior lienor, was made a party defendant in the action to foreclose the mortgage. * " The complaint * * * so far as its averments affect Webster * * * is in the usual form, that the defendants claim or have •' some interest in or lien upon the mortgaged premises, which is subordinate to the lien of the mortgage. It follows, therefore, that Webster’s lien would remain unaffected by any judgment which might have been entered under the complaint, unless his lien was in fact subordinate thereto. It appears by the affidavit of Webster, and the agreement which is made a part of the same, that he entered into possession of the premises in pursuance of said agreement; that he has fulfilled the same upon his part and has paid the purchase price in full, and has been ever since the construction of the building, and prior to the execution of the mortgage foreclosed, in the open, visible possession and occupation of such premises. It is, therefore, clear that, if these allegations are true, Webster could not be affected in his right or title to the property under any judgment entered in the foreclosure action, and it made no difference as to such rights whether he appeared and answered or made default. *(Jacobie*v. *Mickle,*144 N. Y. 237.) It follows, therefore, that as to Webster he may not be disturbed in his possession and occupation by virtue of this judgment, in consequence of which the writ of assistance is not authorized.”

We are of the opinion, under the circumstances disclosed by this record, that the appellant’s rights, based upon a prior, though unrecorded, lease and actual possession should not be determined in a summary proceeding upon affidavits.

The order appealed from should be reversed, with ten dollars *89costs and disbursements, and the motion denied, with ten dollars costs to the appellant.

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

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.