[3, 4] The fact that a term of years granted in a lease has expired does not by itself wipe out all equities in the lease. The mortgage in question, which is here sought to be foreclosed, covered, not only the term of years, but likewise all covenants, rights, provisions, etc., in the said leasehold.

[5] One of these provisions and covenants contained in this leasehold is the right to an appraisal upon the exercise of the option to cancel by Columbia University. Whether or not this provision is of financial value is not for the court here to determine. The defendant having commenced an action against Columbia University lends support to the view that said provision in the lease may be valuable. The plaintiffs, as the owners and holders of the mortgage, upon which there is a default, have a right to foreclose in order to become possessed of whatever there is left of value in said leasehold. A right to damages contained as a provision in a lease is subject to foreclosure.

Utter v. Richmond, 112 N. Y. 610, at page 613, 20 N. E. 554, 556: "No doctrine could be more clearly just than that, when land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon and incident to it."

The equitable lien of a mortgage upon damages awarded was likewise said by the court in the above case to be "perfectly well settled."

[6] There is no reason why plaintiffs should be compelled to accept a share in defendant's action against Columbia University in lieu of plaintiff's right by virtue of his mortgage to what there may be left of value in the leasehold itself. The fact that the defendant Brendan Realty Company did not assume the bond to the plaintiff, but merely took subject to plaintiff's mortgage, is additional reason why plaintiffs are not to be forced into a lawsuit not of their own choosing.

[7] The plea set up in the second defense of possible embarrassment to the defendants in their lawsuit against Columbia University, and the doubtful value of the claim to be sold upon said foreclosure, and the further offer of the defendants to the plaintiff to share in the action against Columbia University, do not constitute an equitable defense to this action. Morris v. Tuthill, 72 N. Y. 575. In that case, defendants allege that the plaintiff and the assignor of the mortgage, acting in concert, were seeking so to harass and embarrass and oppress the defendant that he would be prevented from paying the amounts due upon the mortgage, and thereby lose through fore

(224 N.Y.S.)

closure his equity of redemption, which the mortgagee would then be able to purchase for an insignificant sum. The court stated, at page 577:

"But they do not tend to show that the mortgages have been satisfied, or that the full amount claimed is not due thereon, or that the plaintiff is not the legal holder and owner, and entitled to maintain this action. It is sufficient that the mortgage debt is due, and has been transferred to and is now owned by the plaintiff. He may have brought it from motives of malice toward the defendant, and solely with a view to sue upon them, and the former owner, from a like motive, may have transferred them without consideration; but this would not constitute a defense to the action. The appellant can only arrest the action by paying the amount due, or tendering the same and bringing it into court. The facts stated do not constitute an equitable defense to the mortgages, or impeach the plaintiff's title."

[8] The defenses sought to be set up being insufficient as a matter of law, the plaintiff is entitled to judgment upon the pleadings, pursuant to rule 112.

Enter judgment accordingly.

(130 Misc. Rep. 448)

HORWITZ et al. v. SCHWAB, Building Commissioner of Buffalo, et al.

Supreme Court, Erie County. September 9, 1927.

1. Municipal corporations 621-Building commissioner may refuse building permit if use is prohibited, which refusal is warning to builder that he proceeds at own risk.

Under zoning ordinance, requiring applicants for building permits to state use to which premises are to be devoted, building commissioner may refuse permit, if proposed use is prohibited, and such refusal is sufficient warning to builder that he must proceed at own risk.

2. Municipal corporations 621-Under zoning ordinance, use permit could be changed after building permit is granted, if use is not prohibited.

Under zoning ordinance, granting building commissioner exclusive power to grant building and use permits, "use" permit may be changed after building permit is granted, providing proposed use is not prohibited.

3. Municipal corporations 621-Building commissioner may revoke or modify any permit illegally or improperly granted.

Under zoning ordinance, prohibiting building commissioner from issuing permit unless applicant has complied with all requirements of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ordinance, commissioner may lawfully revoke or modify any permit illegally or improperly granted.

4. Mandamus 14(1)-Court could not direct building commissioner to grant or deny certificate of occupancy and compliance, where none had been asked for.

Where building commissioner expressly stated in letter that petitioners for peremptory mandamus to compel issuance of certificate of occupancy and compliance had never asked for such certificate, and therefore none had been granted, court had no power to direct commissioner to grant or deny such certificate.

Action by Louis Horwitz and others, copartners doing business under the assumed name of Horwitz Bros., for a peremptory mandamus order against Lawrence J. Schwab, as Building Commissioner of the City of Buffalo, and another. On motion to vacate or modify an order denying an application for a peremptory order of mandamus (223 N. Y. S. 638). Motion denied, as directed in opinion.

Saperston, McNaughton & Saperston, Daniel N. McNaughton, Howard T. Saperston, and Ralph K. Robertson, all of Buffalo, for the motion.

Frederic C. Rupp, Corp. Counsel, of Buffalo (John E. Livermore, of Buffalo, of counsel), for building commissioner and city of Buffalo, and George H. Kennedy, of Buffalo, for intervening property owners, opposed.

NOONAN, J. This is a motion to vacate or modify an order entered herein on July 29, 1927, denying an application for a peremptory order of mandamus to compel the building commissioner of the city of Buffalo to issue a "certificate of occupancy and compliance" for a certain building erected for the petitioners, and for a resubmission of said application upon the papers used, pursuant to stipulation, on the first motion, and the affidavit of Howard T. Saperston and a letter from said building commissioner.

The reasons for the denial of said application have been fully stated in 130 Misc. Rep. 158, 223 N. Y. S. 638, and the only question now before the court is whether or not sufficient reasons have been shown for vacating or modifying said order. In deciding this motion it is not necessary to consider whether or not the "dry-cleaning" business is a nuisance. Therefore the affidavits upon this point are irrelevant. The only problem before the court is to decide what relief, if any, may be granted the petitioners. They claim to have misunderstood the decision, and are fearful that it is a bar to further demands for relief.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(224 N.Y.S.)

[1] The zoning ordinance (section 26-C) requires the applicants for building permits to state "the use or uses to which the premises or proposed building is to be devoted." This enables the building commissioner to refuse a building permit if the proposed use is prohibited, and such refusal is a sufficient warning to the builder that he must proceed at his own risk.

[2, 3] Under said ordinance (section 26-a) the building commissioner has "exclusive power to grant building and use permits," and there is no reason why the "use" permit may not be changed after the "building" permit is granted, provided the proposed use is not prohibited. This section also prohibits the said commissioner from issuing a permit, unless the applicant has complied with all the requirements of the ordinance, and, by implication, if not by express power, he may lawfully revoke or modify any permit that has been illegally or improperly granted.

Upon the argument of this motion counsel asked that the court direct said commissioner to act upon the permit of November 4, 1926. This has already been done in part by the commissioner's letter of December 3, 1926, which revoked and canceled that part of the permit relating to the use of the proposed building for "dry-cleaning" purposes. The petitioners recognized this revocation by applying, on December 6, 1926, for a permit to erect a building to be used for "storage only." It was not necessary to act upon this application, because the petitioners already had a valid permit to erect said building.

[4] Furthermore, the letter from said commissioner, which is relied upon, in part, to support this motion, explicitly states that the petitioners have never asked for a "certificate of occupancy and compliance," and "therefore none has been granted or denied." The court has no power to direct said commissioner to grant or deny something that has never been asked for, and this motion must be denied, without costs.

The zoning ordinance is so recent that the practice thereunder has not been settled, and it is only fair that the petitioners have their application for a permit to use the building reviewed by certiorari. Clearly the affidavit of Mr. March, chairman of the board of appeals, and said letter of the building commissioner, are not in harmony. It is not intended that this or the former decision herein shall in any way limit the right to apply for a permit to use said building. If such

an application is made, it should be promptly acted upon by said commissioner. His action, if unfavorable, may then be reviewed by the board of appeals, and its determination, if adverse, reviewed by an order of certiorari, as provided in said ordinance.

Let an order be entered accordingly.

(130 Misc. Rep. 556)

RALSTON v. FIFTH AVE. BOND & MORTGAGE CO. et al.

Supreme Court, Special Term, Queens County. February 19, 1927. 1. Evidence 65-Every one is presumed to know provisions of statute, after it takes effect.

Provisions of statute are presumed to be known by every one, after it takes effect.

2. Limitation of actions

4(1)—Legislature is presumed to consider reasonableness of time prescribed in statute in fixing arbitrary limits. Limitation of time prescribed in any statute is fixed arbitrarily, but presumably after Legislature has carefully considered reasonableness of time prescribed, such as limitations prescribed in Civil Practice Act, §§ 48-52.

3. Limitation of actions 4(1)-Statute of limitation must be reasonable, in view of end sought to be accomplished.

The only guide in fixing time limit in statute of limitation is that statute must be reasonable, in view of end sought to be accomplished, which may be determined by comparison with prior or other analogous statutes of limitations.

4. Limitation of actions 4(1)—Statute barring right to maintain action to redeem property foreclosed, unless taken within year after date named, held valid, and party failing to redeem within statutory time is barred from interest in property (Civil Practice Act, § 46, subd. 2). Civil Practice Act, § 46, subd. 2, providing that, subsequent to date named, right to maintain action to redeem shall be barred, unless person then entitled to maintain such action shall, within year after time mentioned, bring action to redeem property from mortgage, cannot be held void, as interfering unreasonably with property right, though short time was prescribed by comparison with other similar statutes, such as subdivision 1, and party failing to take action within statutory time was barred from all right or interest in property foreclosed.

Action by one Ralston against the Fifth Avenue Bond & Mortgage Company and others. On motion of Philip Kollmer, defendant, to

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes