Cantor v. Cherry, 5322.
| Citation | 73 F.2d 188 |
| Decision Date | 15 October 1934 |
| Docket Number | No. 5322.,5322. |
| Parties | CANTOR v. CHERRY. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Jacob Weinstein, of Philadelphia, Pa., for appellant.
Emil F. Goldhaber and Aarons, Weinstein, Stone & Goldhaber, all of Philadelphia, Pa., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
Cantor, the claiming creditor, was the owner of certain premises in Philadelphia. He leased the property to the bankrupts, trading as Nathan Bloch Sons Company, for one year from February 14, 1931.
The lease provided that either party might terminate the relationship by giving written notice thirty days before the expiration of the lease; that, if no notice was given, the lease continued for another year; and that, if the lessee should become a bankrupt, the rent for the term would become due and payable immediately.
The lessee entered into possession of the premises, and thirty days prior to the end of the term gave notice of its intention to quit the premises at the end of the first year of occupancy, February 14, 1932.
An involuntary petition in bankruptcy was filed on February 5, 1932, and the copartners were adjudicated bankrupts on April 1, 1932. The trustee, Cherry, was appointed receiver and, on April 26, 1932, trustee of the bankrupts.
Some time prior to the filing of the petition the landlord distrained for rent in arrears and due up to February 15, the end of the term. The trustee, who was then the custodian of the bankrupt's business, paid the amount.
The goods and chattels of the bankrupts remained on the premises after February 15, and the receiver surrendered possession to the landlord on May 2, 1932, but the premises were vacant at the time the landlord filed his claim for a year's rental.
The District Court affirmed the order of the referee disallowing the claim of the landlord for a full year's rental and making the landlord an allowance for the use and occupation of the premises from February 14 to May 2, 1932. The claimant, the landlord, appealed.
The claimant contends that, despite the notice to quit the premises, the bankrupts held over and failed to vacate the premises, and therefore, with the assent of the landlord, they bound themselves to a new term under the lease, and by its provisions made themselves liable for rental for the ensuing term of the lease. Adams v. Dunn, 64 Pa. Super. 303.
But the trustee correctly points out that the question here is not to determine the legal consequences of a...
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