In re B. Westermann Co.

• Decision Date: 19 July 1943
• Citation: 51 F. Supp. 776
• Parties: In re B. WESTERMANN CO., Inc.
• Court: U.S. District Court — Southern District of New York

51 F. Supp. 776

In re B. WESTERMANN CO., Inc.

District Court, S. D. New York.

July 19, 1943.

Sidney C. Norris, of New York City (Joseph Krefetz, of New York City, of counsel), for landlord.

Dannenberg & Hazen, of New York City (Julius M. Arnstein, of New York City, of counsel), for bankruptcy trustee.

CAFFEY, District Judge.

At my recent sitting in the motion part I reserved rulings on a mass of motions. Some of these were difficult and disposition of them has required much time. In consequence, in view of my other engagements, without long delay opportunity will not be available for extensive discussion. Moreover, I do not believe that any more than summary comment is needed.

The reasons I think I am justified in being brief are as follows: (1) Save in regard to one matter, which I believe without significance, the facts are not in dispute. (2) The only issue of law which is substantial turns on a single short statutory provision which is not difficult to construe. (3) There is no occasion to go at length into court decisions.

Again, the referee has adequately explained the ground on which he acted. Repetition of what he there said would be useless.

The trustee assigns as error exclusion by the referee of further evidence in respect to what was referred to as settlement negotiations. As is conceded by counsel, the only possible theory of admissibility of such evidence is that, if all of it came in, it might establish an admission that the amount of the landlord's claim is less than the landlord thereafter contended for and the referee allowed.

Substantial argument can be made that the ruling of the referee was right; but I do not rest my conclusion on the assumption that it is sound. On the other hand, for the present purpose I shall assume that the referee was wrong in keeping out the testimony which, in substance, the trustee proffered. As I see the situation, even though such action by the referee was erroneous, his holding on the point was harmless and, therefore, is not ground for reversal or for remitting the proceeding to the referee for taking further testimony.

My view of the matter to that effect rests on the fact that through witnesses the amount owing was definitely computed, with accompanying explanations which any one can verify; and hence that, even though at a preceding date the claimant had conceded that what it was entitled to was less than what the referee later allowed, it would not have been proper for the referee to hold that the so-called admission by the claimant had foreclosed it from contending and procuring the referee to determine that the larger amount was owing. Any other course by the referee would have been too highly technical to gain the approval of this court. On that account I believe that further testimony about negotiations between the parties as to the amount owing would not have changed the size of the allowance as actually made.

It seems to me clear that the net amount owing for rent under the lease at the time of the landlord's reentry on April 1, 1942 (after the commencement of the bankruptcy proceeding), was correctly found by the referee to have been $3,313.70.

Likewise, it seems to me that the referee rightly found that one year's rent from the reentry would have been $22,769.95. When the latter sum was added to the rent owing at the time of the reentry, the total was $26,083.65. So also the referee was justified in finding that the sum is less than the...