In the Matter of the Assignment of GIRARD N. WHITNEY to BAYARD L. PECK, for the Benefit of Creditors. Claim of DUDLEY S. HARDE and HERBERT S. HARDE, Respondents, BAYARD L. PECK, as Assignee for the Benefit of Creditors of GIRARD N. WHITNEY, Appellant.
APPEAL by Bayard L. Peck, as assignee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1911, confirming the report of a referee.
Daniel Burke, for the appellant.
Charles F. Brown, for the respondents.
Order affirmed, with ten dollars costs and disbursements, on the opinion of the referee.
Present--INGRAHAM, P. J., MCLAUGHLIN, SCOTT, MILLER and DOWLING, JJ. INGRAHAM, P. J., and MCLAUGHLIN, J., dissented.
The following is the opinion of the referee:
JOHN L. WILKIE, Referee:
On October 20, 1906, Girard N. Whitney leased from Dudley S. Harde and Herbert S. Harde certain premises in the city of New York for a period of four years and eleven months commencing November 1, 1906, and ending September 30, 1911. The rent reserved was $3,000 a year payable in monthly installments on the first day of each month. The lease contained the usual clause permitting the lessors to re-enter upon the premises in the event of the tenant's non-payment of rent, to lease them, and to hold the lessee for the balance of the rent, but this right was never exercised by the lessors. On the contrary, the premises have been continually in the possession of the lessee or his undertenants under sub-leases made with the knowledge and consent of the lessors.
In January, 1908, the lessee, Mr. Whitney, made an assignment for the benefit of his creditors to Bayard L. Peck. The assignment was made by him individually and as a member of the copartnership of Whitney & Kitchen, and directed the assignee, after the payment of the expenses of the trust and his commissions, 'to pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due or to grow due from the said copartnership of Whitney & Kitchen and from the aforesaid party of the first
part * * *.' Thereafter the assignee duly qualified and entered upon the discharge of his duties. No rent was unpaid at the time of the assignment, the rent for January, 1908, having been paid by the lessee on or about January 2, 1908.
On or about June 22, 1908, the lessors presented to and filed with the assignee a proof of claim against their lessee, the assignor, for rent claimed to be then due and owing for the months of March, April, May and June, 1908, amounting to $1,000, and for rent which it was claimed would thereafter grow due during the remainder of the term of the lease, amounting to $9,750. This claim was rejected by the assignee on or about June 23, 1908.
On December 20, 1909, an order was made on the petition of the assignee referring the aforesaid claim to me 'as sole referee to hear and determine,' and a hearing was had on December 1, 1910, at which testimony was given establishing the following facts: That no rent was paid for the months of March to September, inclusive, of the year 1908, leaving a balance due for the year ending September 30, 1908, of $1,750; that during the year commencing October 1, 1908, and ending September 30, 1909, the lessors received from the assignor on account of rent the sum of $1,500 only, leaving a balance due for that year of $1,500; that during the year commencing October 1, 1909, and ending September 30, 1910, the lessors received from the assignor on account of rent the sum of $1,500 only, leaving a balance due for that year of $1,500; that the only other payment made to the lessors was a payment of $250, made on or about November 16, 1910; and that on or about November 16, 1910, the lessors, the claimants here, conveyed the premises to some third party and ceased to be the owners thereof.
Apparently no payment was made on account of the October, 1910, rent, amounting to $250, the payment made about November 16, 1910, being applied to November.
The rent due and unpaid at the time the claimants ceased to be the owners of the premises was, therefore, $5,000, and the amount to grow due was $2,625, on account of which $125 has been paid, leaving a balance to grow due of $2,500.
Two questions were presented for ...