123 F. 942 | N.D.N.Y. | 1903
The Hinckel Brewing Company was engaged in the manufacture and sale of beer in the plant owned by said company at Albany, N. Y., and this was its principal business. To aid itself in disposing of its product, it advanced money from time to time to various saloon keepers, to pay license fees, etc., and, as a part of its business, and to aid in disposing of its product, on or about the 23d day of October, 1897, it entered into a contract with Isaac Hough by which said Hough let and rented to the said brewing company the premises at the corner of Washington Avenue and Capitol Place, in the city of Albany, for the term of 10 years at the yearly rent of $1,525, and also the premises at No. 95 South Pearl street, in the city of Albany, which lease expired May 1, 1902. The Hinckel Brewing Company entered into the possession and occupation of these premises, and rented same to tenants, for the purpose of having the premises used as saloons, and for the purpose of selling to said tenants lager beer, the product of said brewery. The rent of the first-mentioned premises was payable monthly in advance, at $127.08 per month, and the premises last above mentioned were let at the rate of $112.50 per month, payable in advance. The tenants were to pay special water rates. The rental of said premises was paid in full to January 1, 1902. On or about the 13th day of February, 1902, a petition in involuntary bankruptcy was filed against the said Hinckel Brewing Company; and Edward Murphy, 2d, was appointed receiver of the said company, and by the order appointing him was authorized and directed to continue and carry on and conduct the business of said company. He duly qualified as such receiver, and entered upon the discharge of his duty as such, and carried on the business of said Hinckel Brewing
It is undoubtedly true that if, on the filing of a voluntary petition in bankruptcy, the bankrupt abandons leased premises, the lessor may take possession, and is limited in his recovery of rent to the date of the filing of the petition. The lease is terminated by an adjudication
In Re Mahler (D. C.) 105 Fed. 428, it was held that rent accruing after adjudication could not be allowed, but rent was allowed up to that time. In Re Goldstein, 2 Am. Bankr. R. 603, rent accruing after the filing of the petition was allowed. In Re Jefferson (D. C.) 93 Fed. 948, it was held that the landlord has no provable claim against the tenant’s estate in bankruptcy for the rent which would have accrued under the lease after the date of adjudication. In Bray v. Cobb (D. C.) 100 Fed. 270, held, that a lease is terminated by the adjudication in bankruptcy, and that the lessor has no provable debt which can be allowed for rent accruing after the date of such adjudication. In Re Arnstein et al. (D. C.) 101 Fed. 706, the trustee, when appointed, continued to occupy the premises, and paid the landlord for such occupancy. The landlord then resumed possession, and moved for the liquidation of his claim against the estate of the bankrupt for damages for breach of the lease, in- order that he might thereafter prove such damages as a claim against the estate. Held, properly, that this could not be done. But that is not this case. Here the receiver appointed by the court, by authority and direction of the court, continued all the business of the alleged bankrupt until the adjudication, and continued to occupy the premises by and through the tenants of the bankrupt for the benefit of the estate; and there is no pretense that any notice was given to Hough that the relations were changed, or would be considered as changed. This court cannot see that the filing of this petition against the Hinckel Brewing Company, and the appointment of a temporary receiver by the court in bankruptcy, with authority and direction to continue the business—which meant all the business— terminated the lease or the liability of the alleged bankrupt to pay rent. When the adjudication was made, the lease terminated, and no rent accruing thereafter can be proved or allowed as a debt against the bankrupt estate; but, especially under the circumstances of this case, rent to the date of adjudication was properly provable and properly allowed as a claim or debt against the estate.
Is there any good reason why rent should not continue until the
The order and decision of the referee reducing this claim is reversed, and such claim is allowed at the sum at which originally proved and allowed, viz., $1,768.64. So ordered.