In re H. M. Lasker Co., Inc.

• Citation: 251 F. 53
• Decision Date: 24 April 1918
• Docket Number: 2341.
• Parties: In re H. M. LASKER CO., Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

251 F. 53

In re H. M. LASKER CO., Inc.

No. 2341.

United States Court of Appeals, Third Circuit.

April 24, 1918

William Macrum, of Pittsburgh, Pa., for appellant.

Leonard S. Levin, of Pittsburgh, Pa., for trustee in bankruptcy.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

This is an appeal by a landlord from the decree of the court below confirming the action of a referee in bankruptcy denying his right to collect some $7,000 of rent alleged to be due from the bankrupt estate. The claim was based on this clause in the lease:

'The parties hereto mutually covenant and agree that the work of constructing said arcade (furnishing an entrance to Fifth avenue) shall be begun and prosecuted to completion with due diligence by said landlord substantially in accordance with plans and specifications prepared by F. J. Osterling architect, and heretofore approved by said parties, as soon as possession and free opportunity for the purpose will be afforded by said lessee; the cost of all showcases placed in said arcade, and of fittings or equipment in same special to lessee's business, to be ascertained by said architect immediately upon completion, and repaid by said lessee to said landlord in five yearly installments equal as respects principal, with interest on unpaid balance added to each installment; such five installments to be collectible as rent.'

The referee upheld the claim of the landlord for the amount of rent due at the time of the filing of the petition, plus rent for the premises while they were occupied by the receiver, but denied that part of the rent which was payable subsequent to August 27, 1917. In that respect the referee said:

'It is argued by the learned counsel for the landlord that the whole sum for the improvements having been paid by the landlord should be considered as rent due, and therefore should be allowed in full. But the referee is unable to agree with this contention, for by the other terms of the lease, making this sum due as rent, it is provided that it shall be payable in five equal annual installments, and which was further modified by making it due in monthly installments as rent. The landlord, having taken possession of the premises at the termination of the receiver's occupancy, and having re-rented it, is not entitled to take advantage of the clause in the lease making the whole rent for the entire term become due on

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