16 F. Cas. 1205 | S.D.N.Y. | 1874
T. H. & T. W. Conkling have proved a claim against the bankrupts for $1,101.64, and interest from May 1st, 18-73, “ being a balance for rent of premises ” let to the bankrupts by T. H. & T. W. Conkling, by a lease bear
Thereupon the register has certified to the court, under section 4 of the act, the question or issue, as to whether the claim should he allowed. He also has certified the testimony and the proof of claim. The lease forms a part of the testimony.
The petition in bankruptcy was filed on the 28th of December, 1872. The rent under the lease was fully paid up to the 1st of January, 1873, before the petition in bankruptcy was filed. The rent reserved hy the lease was payable monthly, on the first day of each month, at the rate of $3,500 per year. The lease was for two years from the first of May, 1871. The first rent became payable on the 1st of June, 1871. The rent for the month from January 1st, 1873, to February 1st, 1873, did not become payable till February 1st, 1873. The ‘adjudication of bankruptcy was made before February 1st, 1873.
The nineteenth section of the act provides that all debts due and payable from the bankrupt at the time of the adjudication of bankruptcy, and all debts then existing but not payable until a future day, a rebate of interest.being made where no interest is payable by the terms of contract, may be proved
It is contended for the lessors, that this claim for rent was, under the nineteenth section, a debt existing at the time of the adjudication of bankruptcy, but not payable until a future day, and that, therefore, it may, by the terms of that section, be proved against the estate. The case is sought to be likened to that where an article is purchased to be paid for in installments, at fixed periods, and only part of the installments are paid before an adjudication of bankruptcy, in which case, it is contended, the vendor can prove his debt for the remaining installments, a rebate of interest being made if no interest is payable by the terms of the contract. This might be so if there were not a special provision for the case of rent falling due at fixed and stated periods. And there seems to be a reason for such special provision in regard to rent, in the fact that where an article is purchased the consideration is or is assumed to be executed, while in the case of rent, the consideration is asssumed to be not executed but executory, the use and occupation being m futuro. But, whatever the terms of payment of rent may be, the creditor may prove for a proportionate part thereof up to the time of the bankruptcy, as if the same grew due from day to day, and not at the periods fixed by the contract of letting. The provision in regard to rent not yet due, and to proving for a proportionate part of it, with the further provision that no other than the specified debts shall be proved, makes it entirely plain that this debt, as proved, cannot be allowed.
The words “ the time of the bankruptcy,” mean the time when the petition was filed, to which time the adjudication relates. The rent to that time has been paid. The objection of the assignee to the proof of debt, as made, is sustained and the claim set forth in the proof of debt is disallowed.