#### William P. Harvey, Respondent, *v.*Mary Elizabeth Mooney, Appellant, Impleaded with *“John*Doe” and Others, Defendants.

Second Department,

May 7, 1915.

Mortgage — foreclosure — commencement of action by service upon tenant — subsequent tender of payment by mortgagor prior to service upon her.

The filing of a *Us pendens*and the service of a summons and complaint in an action of foreclosure upon a tenant of the property constitutes a commencement of the action, and a subsequent tender of payment by the mortgagor, even if made before service was made upon her, is insufficient to relieve her from liability for costs.

Appeal by the defendant, Mary Elizabeth Mooney, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 20th day • of October, 1914, upon the decision of the court after a trial before the court without a jury.

*James F. Brady,*for the appellant.

*Robert S. Kristeller,*for the respondent.

Carr, J.:

This is an appeal from a judgment of the County Court of Kings county decreeing foreclosure and sale. The controversy is a very narrow one. The defendant, the owner of the equity of redemption, appeals from the judgment, on the ground that she had made a tender of the amount due on the bond and mortgage, together with interest, before the action was begun, and hence the lien of the mortgage was discharged. She kept this tender good, and paid the amount into court. We are told in the brief of the appellant that since the entry of the judgment the plaintiff has withdrawn from the court the moneys deposited in satisfaction of the bond and mortgage, so that the only question before us on this appeal is whether the defendant should have been charged with the costs of the foreclosure action. There is no controversy as to the essential facts. The whole question is whether the tender was made before the *170action was begun, and as to the circumstances of the tender there is no dispute. The plaintiff filed a notice of *lis pendens,*and served the summons and complaint in the action of foreclosure upon a tenant of the property. It was a two-family house, the tenant residing on the lower floor, and the owner on the upper floor. When the service of the summons and complaint was made on the tenant, the owner was absent from the city, and on her return, and before service was made upon her, she made the tender. So the whole question is, was the tender made before the action was begun ? It is the theory of the appellant that the action was not begun until she was served with the process, while it is the contention of the respondent that the action was begun when the summons was served upon a necessary party defendant. It seems plain that a tenant in possession of real property is a necessary party defendant to an action for foreclosure and sale, in order that the property may be sold under the judgment free of all outstanding claims. If the tenant were omitted from the foreclosure action, then the purchaser under the judgment would not be entitled to oust the tenant until the termination of the tenancy, and, at the same time, would take the title subject to any claim of right that the apparent tenant might have, his occupation of the property being notice to all parties attempting to deal with it. This being so, then the action of foreclosure was begun when the tenant was served with the summons and complaint, and the tender made thereafter by the owner, even though she herself had not been served at the time, was not made before the beginning of the action. The appellant argues that, as there was but one tenant in the property, the circumstances of the case are peculiar, and the action should not be deemed to have been begun until she had been served. It seems to us, however, that this action is to be determined regardless of how many tenants there were. It is apparent that in a foreclosure action there may be a great number of parties defendant, exclusive of the owner of the equity of redemption, and a plaintiff seeking to foreclose a mortgage could be put to very considerable expense in making service upon numerous necessary defendants during the absence of the owner of the equity of redemption. It can be scarcely the case that the owner of the equity of redemption *171could then come in and make a tender just the same as if no action had been begun and thus escape the imposition of costs.

The judgment of the County Court of Kings county is affirmed, with costs.

Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.

Judgment of the County Court of Kings county affirmed, with costs.