In re Caswell-Massey Co.

208 F. 571 | S.D.N.Y. | 1910

HOLT, District Judge.

I think that the rule governing the amount due for rent under an ordinary lease of real estate after eviction or surrender accepted by the landlord may not apply to a claim under a contract relating to the installation and use of a store service apparatus, like that which is the subject of this motion. Land is not substantially injured by its use, and on the termination of an ordinary lease of real estate the landlord takes back the land, in substantially its original condition. In the matter of the Kugler Syndicate, which was before me as referee some years ago, in which the claimant had installed a similar store service apparatus under a lease substantially similar to those executed in this case, it appeared in evidence that the apparatus in question had to be especially adapted to the premises in which it was placed, that when taken out most of it could not be used again, and that the total amount of the rental for the five years was about the price which was charged when an actual purchase was made. Under those circumstances, I held that the so-called lease was substantially an,arrangement for payment by installments; that the contract, which provided that, in case of default for a certain number of days, the whole rental should become due, was one which the parties had a right to make; and that, the default having occurred, the liability became fixed, and the claimant was entitled to prove for the full amount. It does not appear in this case whether the same facts exist. I think that, if the property, when it was removed from the bankrupt’s store and the possession of it resumed by the Lamson Company, -was substantially worth as much as it was when put in, the reasoning of the referee would be correct, and that the rule in respect to the termination of rent after the resumption of possession of real estate would apply; but, if the facts in this case are similar to those in the matter of the Kugler Syndicate, I think it would not apply.

My conclusion is that the case should be sent back to the referee to take further evidence as to the facts in the case.