Young v. Peyser

Headnote

1. Where the lessee 'of a term for years, the rent heing payable quarterly, assigns his property (including the lease,) to -a trustee for the payment of his creditors, and the assignee enters in the middle of a quarter and occupies the premises until the rent of the current quarter becomes payable, the assignee is hable for the rent of the whole quarter.

2. In such case where the assignee continued to occupy for fourteen days after such rent became payable, and then surrendered to the lessor, who accepted the surrender and took possession, such assignee is not liable for the rent of the premises, for the said fourteen days.

This cause came on to be heard at General Term, upon a case agreed upon between the parties, pursuant to § 872 of the Code, as follows, to wit:

“By an indenture of lease, dated the Sd day of April, 1857, executed by and between the plaintiff as lessor, and

William and Marcus Fñedlander as lessees, the plaintiff demised and rented to said lessees all the lofts above the first or principal story of the brick store number twenty-two, on the south side of John street, in the city of New York, for the term of one year, from the first day of May, 1857, at the yearly rent of fourteen hundred dollars, payable quarterly on the first days of August, November, February and May, for which the lessees bound themselves and their assigns. The said lessees entered in and upon possession of the demised premises under said lease, and remained in possession thereof until the 18th day of September, 1857, when they by an instrument under seal, and then and there delivered to the defendant, assigned to him in trust for the benefit of creditors all the property of said lessees, including the lease aforesaid.

“ The defendant in and by the terms of said assignment of said W. & M. Fñedlander, was preferred as a creditor to a considerable amount. The defendant accepted the said assignment, and by virtue thereof entered into the said premises and took possession thereof, and actually used and occupied the same thenceforth and until the 14th day of November, 1857, at which time said defendant surrendered the lease and premises to the plaintiffs, who accepted the same.

“No part of the quarter’s rent of said premises, which became due and payable by the terms of said lease on the 1st day of November, 1857, has been paid by the defendant or any other person.

“ The question is now submitted to the Court whether the defendant is or is not personally hable for the payment of the rent of said premises, according to the terms of said lease, which accrued and became payable on the 1st day of November, 1857, and whether he is or is not also liable in addition to pay a proportionate part of the rent, from the 1st to the 14th day of November, 1857, until which time he was in the actual occupation thereof.

“ If the defendant is personally liable for the rent which accrued on the first of said November, the Court will render judgment against him for the sum of three hundred and fifty dollars, and interest from November 1st, 1857. And if the defendant is liable for the additional rent up to the 14th of

November, 1857, the Court will render judgment for the additional sum of fifty-eight dollars and twenty-five cents.

“ The prevailing party is to recover fifty dollars costs.”