Stephens v. Stein — 30 N.Y. St. Rep. 391

Majority

p. 391

Anson P. Stephens, Pl’ff, v. Benjamin Stein, Assignee, Def't.

(City Court of New York, Trial Term,

Filed April 7, 1890.)

Headnote

Assignment for creditors—Lease.

Prior to the making of a general assignment an attachment was levied on the goods of the firm and they were housed on the demised premises. The attachment was subsequently vacated, and the assignee made an arrangement for a reduction of rent and decided to remain on the premises by the month. Meld, that he was not personally liable for the rent of the premises while the sheriff remained in possession.

Mansell & Bltjme, as tenants, rented from the plaintiff as landlord, the store and basement Ho. 71 William street, New York, for one year from May 1st, 1889, at the rate of $133.33 per month. While the tenants were in occupation of the premises, to wit: December 14, 1889, an attachment was issued against the tenants under which the sheriff seized upon and took possession of the stock of goods which they had on the demised premises. On December 16, 1889, the tenants made a general assignment for the benefit of their creditors, and the defendant was named therein as assignee. He accepted the trust by qualifying. On January 30, 1890, the attachment was vacated. During the time the ’ sheriff was in possession the goods were housed on the demised premises. On February 1, 1890, the assignee made an arrangement personally for a reduction of the rent, and upon such deduction decided to remain in the premises “by the month,” but no-

p. 392

arrangement was made as to the rent previous to February 1, 1890. The question to be decided is whether the assignee as such is liable for the rent of the premises from December 16, 1889, to February 1, 1890.

B. D. Barlow, for pl’ff; JSf. Bijur, for deft

An assignee for the benefit of creditors has an election to accept or decline the lease of premises "previously held by his assignor. If he enters into possession ana transacts business, he will be deemed to have accepted the term. If he enters, inventories, packs and removes the goods within a reasonable time, and no longer occupies the premises, he is not liable for the rent. Myers v. Hunt, 8 N. Y. State Rep., 338. The defendant, as assignee, took his rights subject to the attachment previously issued against his assignors, and to the custody and possession of the sheriff, which were released January 30, 1890. The assignee was not called upon to elect whether or not he would take the term until the sheriff vacated. That he did not elect to take is evidenced by the fact that the assignee did not take possession under the lease assigned, but under a new arrangement by the month at a reduced rent. This new arrangement abrogated the lease held by the assignors. They are personally liable up till February 1, 1890. The liability of the defendant commenced on that day. He is not liable for the rent claimed, to wit: from December 16, 1889, to February 1, 1890, and there must be judgment in his favor.