In re Hevenor

• Decision Date: 15 January 1895
• Parties: In re HEVENOR. In re ANSLEY.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 271

39 N.E. 393

In re HEVENOR.

In re ANSLEY.

Court of Appeals of New York.

Jan. 15, 1895.

Appeal from supreme court, general term, Fifth department.

In the matter of the general assignment of William G. Hevenor, for the benefit of his creditors, to Hudson Ansley. From a judgment of the general term (23 N. Y. Supp. 1092), affirming an order of the county court which confirmed the report of a referee rejecting a claim for rent presented to the assignee by Charles D. Marshall and Julia A. Sherman, as executors of R. J. Sherman, deceased, and by Martha R. Sherman, claimants appeal. Affirmed.

On July 13, 1891, Hevenor made a general assignment for the benefit of his creditors. The deed of assignment contained the provision that, after the payment of the expenses of executing the assignment and of certain debts, the assignee should apply the residue of the estate to the payment of all the debts and liabilities of the assignor then due or to grow due. Prior to the making of the assignment, and on April 18, 1891, the assignor had leased certain premises in the city of Buffalo for the term of five years from May 1, 1891, at the annual rental of $7,200, payable monthly in advance. The rent accruing under the lease, while the assignor was in possession, was paid. After the assignment the assignee occupied the premises for a while, and paid rent therefor at the rate reserved in the lease. When the assignee vacated the premises, the lessors relet them to different persons, by virtue of a provision in the lease to the effect that if the premises became vacant during the term, because of nonpayment of rent or otherwise, the lessors might re-enter, or might relet them, as the agents of the lessee, and apply the avails thereof to the payment of the rent due under the lease. On November 1, 1892, the lessors had received $5,136.50 less than the amount of rent payable by the terms of the lease. For that sum the lessors filed with the assignee a claim, and also a claim for the rent to accrue from November 1, 1892, to the expiration of the lease, at the rate reserved in the lease. These claims the assignee rejected; and, pursuant to a stipulation, the claim and the rejection thereof were referred to a referee, whose report against the claimants was confirmed. Upon appeal, the order rejecting the claims was affirmed, and the claimants have appealed to this court.Spencer Clinton, for appellants.

B. Frank Dake, for respondent.

GRAY, J. (after stating the facts).

By the provisions of the lease it was open to these appellants, the lessors, to elect to allow the premises to remain vacant, in which case they would have had a vaild and certain claim against the assigned estate for the rent as reserved in the lease; or they could take the other course, and, as the agents of the lessee, relet the premises, and apply the avails in reduction of the rent reserved in the lease. The effect of exercising the latter option...