H. L. Judd & Co. v. Bennett , 59 N.Y.S. 624 ( 1899 )

MacLean, J.

The two defendants first named were.appointed assignees for the benefit of the creditors of a corporation in an assignment made and recorded at Boston, June 16, 1898, and> wherein it was, provided that.the third defendant (Beimers) might be joined also as an assignee. He was so joined June eighteenth. The assignor had occupied the entire first loft of the plaintiff’s building (in which the plaintiff had also its place of business), at Ho. 89 Chambers and Ho. 71 Beade streets, Hew York city, under a lease for the term of three years, from August 1, 1896, at $1,750 per annum, payable in equal monthly payments. On June sixteenth, the day whereon the assignment was recorded in Boston, the sheriff of Hew York- county, under an attachment, procured by the firm of which the defendant Eeimers was a member, levied upon the assignor’s chattels in the Hew York premises, put keepers in charge and thereafter remained, according to an admission for the purposes of this case, “ in possession ” until Tuesday, August second, when he sold the chattels under the execution into which the attachment had ripened. Other attachments were received by the sheriff, beginning with one in ■ favor of the attorneys of the plaintiff herein, which came to, him June eighteenth. Bending the sheriff’s possession, former employees of the assignor, under instructions of the sheriff and by permission of the attach-' ing creditors, made sales from the stock, the proceeds of which were turned over to the sheriff and held by him under the attachment. By Monday, the eighth of August, the purchasers at the sale had taken away their goods and the assignees had removed some things not sold — desks and the like furniture. The sheriff took the books. This action was brought, as appears by the title, against the defendants individually, and not as assignees. It was brought to recover the rental stipulated in the lease for the months of June, July and August, 1898. To show that assignees for the benefit of creditors are liable for the rental under a contract of hiring by their assignor, it is necessary to show that they have assumed the obligation either by an express agreement or by unequivocal acts. Hone of these here appear. There was no oral communication between the parties respecting the lease or premises. When the defendants learned of the existence of the lease, they bade their attorneys write, and their attorneys wrote, to the plaintiff that they had not accepted and would not accept or assume it. A fortnight later, on the day before the sale by the sheriff, of the chattels attached, the assignees transferred the lease, if thereto any right or title they had, to one Thorp, at the same time disclaiming that they had any such right, title or interest, and saying expressly in the paper that the transfer was for the purpose and intention of transferring such interest, if by any possibility they had it. Great stress is laid upon this paper as an expression of election on the part of the defendants to assume the lease. It is difficult, however, to put upon it any such interpretation. It was, moreover, a transaction between other parties, of which the plaintiff landlord had no information. The sheriff’s custody of the goods upon the premises, herein called possession, was not the possession of the defendants, of whom he was not the agent. If the landlord was unwilling to allow the sheriff to keep the chattels, attached, where he found them, proceedings should have been brought to dispossess him, for the sheriff did not become a tenant through the levy or the maintenance of custody and was not bound to pay the landlord. The assignees had a reasonable time .to determine whether an assumption of the lease would be for the benefit of the estate. Ho case is cited as holding that six days, of which one was Sunday, is an unreasonable time for such election, and the justice’s determination upon the facts that it was reasonable is not to be disturbed.

Freedman, P. J., concurs; Leventeitt, J., concurs in result.

Judgment affirmed, with costs.