23 N.Y.S. 1092 | N.Y. Sup. Ct. | 1893
On July 13, 1891, William G. Hevenor made a general assignment for the benefit of his creditors to Hudson Ansley, and on the next day it was recorded in the office of the clerk of Erie county. After making preferences for certain creditors, the assignor directed the assignee “to pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due or to grow due from the said party of the first part, with interest thereon.” Prior to that time, and on the 18th day of April, 1891, the appellants leased to the assignor a certain store and premises in the city of Buffalo" for the term of five years from the 1st day of May, 1891, at the annual rent of $7,200, payable in monthly payments of $600 each in advance. The rent was paid up to the time of the assignment, and by the assignee for the term he thereafter occupied the premises. At the expiration of that time the lessors took possession of them, and since then the lessors have assumed to rent the premises, as agents of the lessee, pursuant to the provision of the lease to the effect that, if the premises should at any time during the term become vacant, the party of the first part might enter and relet the premises as the agent of the party of the second part, applying the avails thereof to the payment of the expenses and the rent due upon the lease, and hold the party of the second part for any deficiency. On November 1, 1892, the lessors, appellants, filed their claim, whereby it was represented that the amount of rent to that date under the lease was $10,600, and the amount received thereon $5,463.50, leaving a balance of $5,136.50 unpaid. The rejection of this claim by the assignee was supported by the order or decree from which this appeal is taken. The question presented is whether the payment of deficiencies in rents derived from the premises subsequent to the assignment came within the direction in that respect given by the assignor in the assignment. If it did not, the claim was properly rejected. An assignment in trust for the payments of debts due and to grow due refers only to debts then existing, including those payable in the future. Brainerd v. Dunning, 30 N. Y. 211. Whether or not the assignor would be liable for any amount upon his lease on account of rent accruing subse
The order should be affirmed, with costs. All concur.