90 Misc. 9 | N.Y. App. Term. | 1915
The landlord instituted summary pro-. ceedings against the tenant for the non-payment of rent for the month of September, 1914. Prior to August 4, Í914, the landlord was engaged in the business of private banker in the city of New York. On August 4, 1914, the superintendent of banks of the state of New York took possession of the landlord’s property and business for the purpose of liquidating the same. On August 5,1914, a petition in involuntary bankruptcy was - filed against the landlord in the United States District Court, which proceedings at the time of the trial were still pending, no adjudication in bankruptcy having been made by that court. The tenant occupied an apartment in the premises of the land
“ That Benny Koerner, the tenant herein, occupied an apartment in said premises at an agreed rental of $12.00 per month, which said sum was due and payable for the month of September, on the 1st day of September, 1914.
“ That it was agreed between the landlord and the tenant that the said monthly rental of $12.0'Q shall be due and .payable the 1st day of each and every month in advance, and said sum of $12.00, the rental of the premises for the month of September, was due and payable on the 1st day of September, 1914, which sum the tenant admits is due the landlord under said agreement.”
The tenant was a depositor in the private bank of the landlord, and at the closing of the bank, August 4, 1914, had on deposit to his credit $490. Instead of paying the rent for the month of September, which was due and payable September first, the tenant demanded that the rent be set off against his deposit, which was refused by the superintendent of banks, on behalf of the landlord, whereupon these dispossess proceedings were instituted.
Both sides concede that the right to the set-off must be determined as of the time when the superintendent of banks took possession of the landlord’s bank, which was August 4, 1914. The issue, then, is whether on that date there were mutual debts between the estate of the bankrupt landlord and the tenant. There being no dispute that the deposit was a debt of the bankrupt to the tenant, the question is merely whether the rent that fell due on September 1, 1914, was a debt on August 4,1914. The rent accruing September 1,1914, could not have been a debt on August 4,
Although there is a so-called agreed statement of
Guy and Pendleton, JJ., concur.
Final order reversed, with costs, and directed to issue in favor of landlord against tenant, with costs.