18 N.Y.S. 412 | N.Y. Sup. Ct. | 1892
J. The claim made by the appellants, Edward W. Eames and Harriet E. Potter, arises upon a lease executed by them of certain premises in the city of Buffalo to Charles 0. Willis, and which ran from January 1, 1888, to May 1, 1891, at the rent of $2,200 per year up to May 1, 1888, and $2,900 per year from May 1, 1888, payable in monthly installments. The usual provision was inserted in the lease, empowering the lessors to re-enter and re-rent the premises in case of non-payment of rent, and to apply the proceeds to the payment of the rent accruing during the balance of the term, with liability upon the lessees to pay the residue. The assignment of Willis was made on the 11th day of April, 1890. The assignee, Schwartz, immediately took possession of the assigned property, and occupied the demised premises from the 11th day of April, 1890, to the 1st day of May of that year, when the stock was sold out by him; the purchaser, through Mr. Schwartz, however, having paid the rent for the month. But no claim is made in behalf of these creditors that the assignee, by virtue of his occupancy of the premises during the residue of the month of April, or by paying the rent for the month of May, accepted the leasehold property for the 'unexpired term, or agreed to pay the rent reserved. The landlords’ claim is the difference between the amount of the rent agreed to be paid for the unexpired term and the amount which the lessors were actually able to re-rent the demised premises for in the exercise of due diligence. Our decision, therefore, turns upon the question whether the claim for rent made by the landlords was a debt due and owing to them by the assignor at the time of the making of the assignment. The assignment contained provisions to the effect that after the payment of the expenses of the trust and the claims of certain preferred creditors, among whom were not the claimants, the assignee should pay in full “all other indebtedness due and owing by the said party of the first part to any person or persons whomsoeverand that, after payment of “lawful debts due and owing by the said party of.the first part, the assignee should return the surplus, if any, ” to the assignor. We think, within the adjudged cases, that the claim of the appellants cannot be upheld. This is a proceeding, not in bankruptcy nor under any law for the distribution of decedents’ estates. The assignee derives all his powers from the assignment. He is bound to carry out its terms, and is not governed by the provisions of law relating to the distribution of a
All concur.