In re Prudential Lithograph Co., Inc.
| Decision Date | 17 April 1920 |
| Citation | 265 F. 869 |
| Parties | In re PRUDENTIAL LITHOGRAPH CO., Inc. |
| Court | U.S. District Court — Southern District of New York |
Moses & Singer, of New York City, for receiver.
Frederick Seymour, of New York City, for landlord.
This is a motion by the receiver for an order, inter alia, confirming the sale by the receiver of the right, title, and interest in and to the lease to certain premises and directing that the trustee, when elected, execute a confirmatory transfer of the estate in bankruptcy in and to such lease. The motion is opposed by the landlord.
On March 20, 1920, this court made an order authorizing the receiver to sell the assets of the bankrupt estate, including the right, title, and interest in the lease, and on March 29 1920, the assets, including the lease, were sold. The bid for the lease was $3,075. The receiver accepted the bid for the lease subject to the approval of the court. The successful bidder was Industrial Facilities, Incorporated. This bidder stated that, if the court so directs, it will deposit with a trust company $2,500 in liberty bonds as security under the lease.
At the time the motion was made, a trustee had not been elected, but now the receiver has been elected trustee, and, pursuant to a resolution adopted at a meeting of creditors held at the office of the referee, the trustee had elected to accept the lease of the premises in question as an asset of the estate in bankruptcy, and has offered to join in a conveyance of the right, title, and interest of the estate in bankruptcy in and to the lease.
The sole question of law involved is the construction of the clause in the lease marked Exhibit A. That clause reads as follows:
'(2) This lease shall not be assigned, nor shall the said premises, or any part thereof, be let or underlet or used or permitted to be used for any purpose other than above mentioned, without the written consent of the said party of the first part indorsed thereon, to each and every assignment or underletting, or use or permission to use for any other purpose.'
On the argument it was pointed out by the court that the motion might be premature, because a trustee had not as yet been selected, and the court, therefore, did not desire any technical question to be outstanding. Counsel for the landlord, however, did not urge any objection on this ground being desirous that the question should be speedily decided, as May 1st would soon be at hand. Meanwhile the selection of the trustee removes any question in this regard. In Gazlay v. Williams, 210 U.S. 41, 28 Sup.Ct. 687, 52 L.Ed. 950, the clause was:
'Provided, however, that if said...
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In re Levinson
...of a bankrupt passes to the trustee by operation of law. Gazlay v. Williams, 210 U.S. 41, 28 Sup.Ct. 687, 52 L.Ed. 950; Prudential Lithograph Co. (D.C.) 265 F. 869, affirmed (C.C.A.) 270 F. 469, 45 Am.Bankr.Rep. 409; Black Bkptcy, Sec. 326; Remington Bkptcy, 1220; Zwietusch v. Luehring, 156......
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IN RE HOBOKEN MANUFACTURERS R. CO.
...effect a termination, citing such authorities as Gazlay v. Williams, 210 U.S. 41, 28 S.Ct. 687, 52 L.Ed. 950, and In Re Prudential Lithograph Co., D.C., 265 F. 869, affirmed, 2 Cir., 270 F. 469, certiorari denied 256 U.S. 692, 41 S.Ct. 534, 65 L.Ed. 1174. He concedes that an express provisi......