In re Consumers' Coffee Co.

• Decision Date: 08 March 1907
• Docket Number: 2,252.
• Citation: 151 F. 933
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: In re CONSUMERS' COFFEE CO.

151 F. 933

In re CONSUMERS' COFFEE CO.

No. 2,252.

United States District Court, E.D. Pennsylvania.

March 8, 1907

J Frank Staley, for petitioner.

Henry N. Wessel, for creditors.

J. B McPHERSON, District Judge.

This is a claim by a landlord to be paid in full for rent accrued at the date of filing the petition, before any other payments are made out of the fund. The facts appear in the following report of the referee, David W. Amram, Esq.:

'The petitioner was landlord of premises 236 Chestnut street, occupied by the Consumers' Coffee Company, bankrupt. On May 15, 1905, three months rent, amounting to $750, was due to him. On May 18, 1905 a petition in bankruptcy was filed against the Consumers' Coffee Company, the tenant. A receiver was appointed, who, acting under order of the District Court, continued the business of the bankrupt for about one year. On April 9, 1906, an adjudication in bankruptcy was entered, and the matter referred to me as referee. On May 1, 1906, at an adjourned first meeting of creditors, at which the landlord was represented, the receiver filed a petition, praying for leave to sell the assets of the bankrupt estate, upon the said premises, 236 Chestnut street, at private sale, for the sum of $700. After due notice to creditors the said petition was considered at an adjourned first meeting of creditors, held May 15, 1906, at which the landlord was represented, and, no one objecting, approved and an order made by me, authorizing the trustee to sell in accordance with the prayer of the petition. On the same date, to wit, May 15, 1906, the landlord filed several proofs of debt, among them a proof for his said claim of $750, for rent due May 15, 1905.

'It is alleged by the petitioner that before the above-mentioned private sale of the assets, he gave notice to the receiver that he had a lien on the fixtures at said premises, 236 Chestnut street, for the rent due prior to the filing of the petition in bankruptcy, and directed him to hold the fixtures or to earmark the fund arising from the sale of the same. The receiver having failed to file an account, the landlord filed a petition for citation on the receiver to show cause why he should not forthwith file his account. An order was made thereon, and, in compliance therewith, the receiver filed his account on October 12, 1906. At a special meeting of creditors, called for the purpose of auditing said account, held October 25, 1906, the receiver did not appear, and the landlord, through his attorney, prayed for an order on the receiver to appear at a subsequent meeting with his books and records, which order was made and a certified copy thereof served on the receiver by the landlord. At an adjourned special meeting, held November 1, 1906, the receiver appeared, the landlord was present and represented, and an examination of the receiver was commenced by Henry N. Wessel, Esq., acting for the creditors. Before the examination was concluded the attorney for the landlord made a formal oral application of record for the payment of the $700, arising from the sale of the fixtures at 236 Chestnut street, and further proceedings in the matter and examination of the receiver were discontinued, pending the consideration of this application. On November 23d the landlord filed a formal petition, praying for an order on the receiver to pay over to him the said sum of $700; the reasons alleged by the landlord for this demand are that he had a lien on the fixtures in said premises at the time of the bankruptcy, and that, as these fixtures were the same as the ones subsequently sold by the receiver, the receiver sold them subject to his landlord's lien, and that therefore he was entitled to the entire proceeds of the sale thereof inasmuch as his claim for rent exceeded the amount realized.

'It appears from the receiver's...