New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1916-08-27
Sought Equitable Adjust
ment of Rents Due at
Judicial Sales.
NEW LAW ENACTED
TO END DISPUTES
Decision Given on Ruling
in Case Brought Before
Bill Went Into Effect.

Among the measures that composed
the legislative programme OF the Ad-
visory Council of Real Estate Interests
during the last legislative session was
q bill that provided for an equitable
apportion-l,nt of rent between seller
and buyer at judicial sale. A decision
of the Appellate Term, which afhrmeu
a Judgment of the Municipal Court OF
the city. whereby the seller was per-
,,itted 70 retain rents that were PAID
in advance. but covered period SUD
seouent TO the time Of the Judlcial
sale when the property was IN the pos
session of the purchaser, was regarded
rs ineouitable by the law co nmit'ee
Of the Advisory Council. The bill
drafted by the eoun,il rectihed TINS
ineouity by providing for fair app0r-
tionment of such rents paid in advance
so that the lurchaser received all rent
from the time he took possession OF
the property. This bill was enacted
into law.
However, the original case itself was
appealed 20 the council through Louis
Franklin Levy, q member OF It's law
committee. and the Supreme Court,
Appeuate Division, has just handed
down a decision reversing the lower
courts and thus sustaining the posltlon
taken by the Advisory Council. Inc
decision is as follows, and is quoted
at length for purchasers at judicial
sale who have never been certain
whether rents paid in advance can be
apportioned so that the purchaser Will
receive that portion Of the rent cover
ing a period when he became owner
of the premises: =
Mclaughlin, j.: Ihls sppeai -
from a determination Of the Appellate
Term. which affirmed Judgment OF
the Municipal Court Of the City OF Ne"
York, dismissing the complaint.
"The facts are undisputed Inc pam
tiff was the purchaser at psrutloh
sale of certain real estate. The de-
PENDANT, prior to the sale, was the
owner or tenant IN common Of an equal
undivided one-eighth interest in the
property and as such was party 70
The partition action. On June 3, 1918,
the property was sold at public auction
TO one Pfeiffer, who thereafter duly
assigned TO the plaintiff his right ard
interest in the purchase. Under me
terms of sale the referees deed was
10 be delivered on July 2, 1919, put the
closing was postponed until July O.
1915. under q stipulation which pro-
vided that computations should be
made as of the former date. Inc
property was sold subject TO existing
tenancies. and holdover lease, hav-
ing until May /, 1916, to run. On June
Is, 1915. the agents of the owners col
lected SS3.33 rent due IN advance on
that day for the month ended July To-
and on July l, 1915, such agents cot
lected Sl45, rent due in advance for
the month Of July. The total amount
of rent thus collected was S22o.33. De,
PENDANT, as the owner Of an UNDIVIDED
one-eighth interest in the property, re-
ceived one-eighth of that sum, or
S28.54. Plaintiff claims to be entltied
TO its proportionate share OF TINS
amount, SCI .0S, and brought tins action
to recover that sum.
81 am of the opinion that plslntlf
was entitled to recover. Sec. 2674
of the Code of Civil Procedure ex-
pressly provides that all rents reserved
on any lease made payable or becoming
due at fixed periods under any instru-
ment shall be apportioned upon the
determination of an estate or interest
by death or other means. The sale
and the delivery of the deed there
under was a determination OF the de-
PENDANTS estate. Cowen VS. Arnold 90
Hun. 437; Anderson VS.. Carall (ll4
Abb New Cases, 1860.
an the Cowan case the sale was
under a judgment of foreclosure and
i h. whore
n receiver appointed to collect the rent
during the tendency of the action had
collected the rent in advance for a
period extending beyond the day at
which the sale was consummated by
the delivery of the deed, was entitled
10 an apDortionment OF the rent so re-
ceived and to be paid such amount
thereof as covered the period Of time
subsequent to the sale-the court say
ing: If the rule contended for
that any rental of premises sold under
foreclosure, which accrued by being
PAYABLE in advance the day before the
delivery of the deed, would belong to
the owner of the equity OF redemption,
then the purchaser would be deprived
Of the beneficial enjoyment Of the
premises for such period as the rent
covered, whether it was three months,
six months or year.
'In the present case, the plaintiff,
under the undisputed facts, was en-
titled TO an apportionment of the rents
collected in advance, and TO be paid
such amount thereof as covered the
period of time subsequent to July 3,
1915. when the deed was agreed to be
delivered. While it was not delivered
until the sth, it was stipulated that
the computation should be determined
as of the original date of closing: in
other words. that the rights Of the
parties should be determined as Of that
date.
"There being no dispute between the
parties as to the facts, | am Of the
opinion that the determination OF the
Appellate Term and the judgment OF
the Municipal Court should be reversed
and judgment directed for the PLAIN
L. rf nd