160 A.D. 236 | N.Y. App. Div. | 1913
Present — Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.
This is an action brought by an assignee for the benefit of creditors to recover rent due from the defendants to the plaintiff’s assignor at the time of the assignment pursuant to a written lease. The defendants have interposed a counterclaim for damages suffered by reason of their having been evicted after the assignment to the plaintiff. The proof consists almost entirely of documentary evidence and raises no serious question of fact. The United States Restaurant and Realty Company held a long term lease of premises in New York city from the Henry Phipps Estates. It subleased a portion of these premises to the defendants for the term of nine years and four months, ending September 1, 1918, at an annual rental of $15,000 payable in advance in equal monthly installments of $1,250. On April 7, 1910, the United States Restaurant and Realty Company made an assignment for the benefit of its creditors to the plaintiff. At the time of the assignment five monthly installments of rent under the lease were due from the defendants and unpaid aggregating $6,250. On April 30, 1910, the Henry Phipps Estates elected to rescind the lease to the plaintiff’s assignor because of its insolvency, pursuant to a provision of the said lease, and served a written notice to that effect upon the plaintiff and his assignor demanding possession of the premises. Thereafter on the same day the plaintiff made an arrangement with the Phipps Estates, whereby he left the personal property of his assignor upon the premises and obtained permission to go upon them with his assistants to discharge his duties as assignee, subject to removal upon ten days’ notice. During this time the premises subleased by the plaintiff’s assignor to the defendants were in the possession of sub-tenants holding leases from the defendants. In June, 1910, the Henry Phipps Estates, which was the owner of the property, commenced summary proceedings against the plaintiff’s assignor, the defendants and their sub-tenants in possession, as a result of which they were all dispossessed. The defendants’ counterclaim is for damages alleged to' have been suffered by reason of this eviction. If the claim is one against the plaintiff’s assignor, then it cannot be allowed as a counterclaim in this