174 F. 852 | S.D.N.Y. | 1909
This action is brought by Isaac S- Plaut, as trustee in bankruptcy of Solomon Rothschild, bankrupt, against the Gorham Manufacturing Company and others to recover, as an asset of the estate, a lease made by the Gorham Manufacturing Company to the bankrupt of the premises 384 Fifth avenue, New York, dated January lii, 1906, for a term oí 21 years, at an annual rental of $35,000 a year, payable monthly. Rothschild, the tenant, went into possession of the premises under the lease, and paid the rent monthly in advance until and including the month of June, 1906. On July 19, 1906, no rent for July having been paid, the Gorham Manufacturing Company instituted' a proceeding on a petition in a Municipal Court of the city of New York to dispossess the said Rothschild for the nonpayment of rent, and to recover possession of the premises and terminate the. lease. A precept was issued directed to the said Rothschild, requiring him to
“It is hereby consented that Solomon Rothschild the tenant in the above-entitled proceeding, had until Thursday, July 2Cth, .1906, in which to pay rent called for by the precept returnable the 24th day of July, 1906, at 9 ‘o’clock in the forenoon.” .
On July 24th, the original return day of the precept, Messrs. Olney & Comstock appeared in the Municipal Court, filed the stipulation, and had a final order dispossessing the tenant for nonpayment of rent signed by the magistrate, but withheld the issuance of the warrant until July 26, 1906. On July 26th Messrs. Dávis & Kaufman applied to Messrs. Olney & Comstock, asking them if they would accept the rent if they sent the money down the next day, the 27th. Messrs. Olney & Comstock replied that they would, but that they would get out the warrant in the meantime. They thereupon directed their clerk to stop at the office of the Municipal Court on the morning of the following-day, and get the warrant, and he did so. During the 27th, checks for the amount of the rent were sent by Davis & Kaufman to Olney & Comstock. Mr. Comstock testifies that he left town on the 27th, which was Friday, and did not. return until the succeeding. Monday, the 30th; that he told his clerk not to accept checks in payment of the rent, but only money. After Mr. Comstock had left the office, late in the afternoon of the 27th, checks for the amount of the rent were brought to Mr. Comstock’s office by Mr. Davis. The clerk said that his in-j.structions were to take money only. Mr. Davis suggested that he take the checks and give a receipt for them until Mr. Comstock returned, and the clerk did só.'. Upon Mr. Comstock’s return on Monday, the 30th, he had a conversation by telephone with Mr. Kaufman, and said that he found the checks in his office upon his return, and that he would not accept anything but money in payment of the rent. The checks were drawn,by Mr. Rothschild to the order of Mr. Kaufman, and indorsed by the latter. Mr. Comstock asked Mr. Kaufman if he-meant by the indorsement to guarantee the payment of the checks. Mr. Kaufman answered that he did not, that he was merely acting for Mr. Rothschild’ as -an attorney, and a mere conduit for the checks.
The first question in this case is whether the facts proved show that this court lias jurisdiction. The complaint alleges, in substance, that the receiver took possession of the lease and of the premises thereunder, and that he was dispossessed under the warrant of dispossession, which complainant claims was issued without jurisdiction. On demurrer I held that these allegations made out a case which conferred jurisdiction upon this court under the doctrine of the case of Whitney v. Wenman, 198 U. S. 539, 25 Sup. Ct. 778, 49 L. Ed. 1157. But it is not enough that a complaint alleges facts showing jurisdiction in a
This conclusion makes it strictly unnecessary to consider the case upon the merits, but, as an appeal may be taken, and the court on appeal may hold that this court had jurisdiction, and as it is desirable that this elaborate and expensive litigation, if an appeal is taken, should come before the appellate court in such a form that it may be finally disposed of, I will briefly state the conclusions at which I have arrived on the merits.
It fis claimed that the dispossess warrant issued by the magistrate was issued without jurisdiction,'and that therefore it is void. This claim is based on the proposition, as I understand it, that the rent, by the terms of the lease, was not pa)able in advance, and therefore no rent was due when the proceeding was begun; that the service of the precept, when made, was not made upon Rothschild personally, but was made by being- left at his place of business; and that the original defect in the service was not cured by the appearance of Davis & Kaufman as attorneys for the bankrupt, on the ground that attorneys, as such, are not officers of courts of justices of the peace, and, if they appear for a litigant in such a court, must prove that thejr have authority to appear by the provisions of the statute relating to such courts.
The question whether the rent was payable in advance is a question of fact. Rothschild, in fact, had paid it, and the Gorham Manufacturing Company had received it, in advance, at the beginning of each of the six months which had elapsed after Rothschild went into possession. The contemporaneous construction of the parties therefore was .that the rent was payable in advance. The lease was silent on the sub-
But it is claimed that the landlord waived the provisions of the judgment of dispossession by receiving the checks in payment. If, in fact, no bankruptcy had intervened, and the checks had been paid, and the landlord had acquiesced in Rothschild’s continuing in possession of the premises, and had accepted rent subsequently from him, Rothschild would have continued to occupy the’ premises in accordance with the terms of the lease. Logically, the lease having once been absolutely terminated, it might be claimed that any subsequent reten
The complainant’s counsel argues that from the time of the adjudication until the appointment of a trustee the bankrupt is civilly dead, and that nothing that takes place in the meantime can deprive the trustee of his right to elect whether to accept any asset of the bankrupt or not. If that doctrine were true, the court would have no power to authorize any action whatever in respect to the assets of the estate until the trustee was appointed. It could not order a sale; it could not permit a delivery of property admitted not to belong to the bankrupt; it could not permit a business to be carried on. The adjudication would strike the estate with a complete paralysis until the necessary weeks or the usual months had passed before the appointment of the trustee. There is nothing in the bankrupt act which authorizes such a conclusion.
It is also claimed that the judgment of dispossession having taken place when the bankrupt was insolvent, and within four months of his bankruptcy, is null and void, under the provisions of section 67f of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3450]), which provides that:
“All levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within tour months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is.adjudged a bankrupt.”
But the judgment of dispossession did not create a lien upon the bankrupt’s estate. rtA judgment or decree in enforcement of an other
My conclusion is that this court has no jurisdiction of this case, and that, if it had jurisdiction, there should be a decree for the defendants upon the merits.