Jacob Ruppert Realty Corp. v. Bank of United States

• Decision Date: 04 January 1938
• Citation: 12 N.E.2d 611,276 N.Y. 629
• Court: New York Court of Appeals Court of Appeals
• Parties: JACOB RUPPERT REALTY CORPORATION, Appellant, v. BANK OF UNITED STATES and another, Respondents.

276 N.Y. 629

12 N.E.2d 611

JACOB RUPPERT REALTY CORPORATION, Appellant,

v.BANK OF UNITED STATES and another, Respondents.

Court of Appeals of New York.

Jan. 4, 1938.

Action by the Jacob Ruppert Realty Corporation against the Bank of United States and Joseph A. Broderick, as State Superintendent of Banks of the State of New York. Plaintiff's predecessor in title, the fee owner of a building in New York City, entered into a lease with the Central Mercantile Bank of New York in 1926, covering a portion of the premises for the purposes of a bank for a period from February 1, 1927, to February 1, 1948. The rentals were graduated each five years from the sum of $82,500 per year at the commencement of the term to the sum of $128,333 per year for the last six years of the term. The lease provided that in event of a breach or threatened breach lessor should have the right of injunction and the right to invoke any remedy allowed at law or in equity, as if re-entry, summary proceedings and other remedies were not provided for. The Central Mercantile Bank was later merged with the Bank of United States. On December 11, 1930, the Bank of United States was insolvent, and its assets were taken over by the superintendent of banks. On May 6, 1931, the superintendent notified all creditors of the bank pursuant to section 72 of the Banking Law, Consol.Laws, c. 2, as amended by Laws 1931, c. 310, § 1, to present their claims against the bank on or before June 29, 1931.

On May 25, 1931, plaintiff served notice on the superintendent to terminate the lease. At the same time the plaintiff filed with the superintendent its proof of claim for ‘all sums of rent and other charges accruing and to accrue’ under the terms of the lease. On September 1, 1931, the plaintiff served upon the superintendent a supplemental notice of termination of lease stating that the lessor asserted its right to serve the notice, supplemental to prior notice and to terminate the lease on the ground, additional to that set forth in the prior notice, that the demised premises on August 25, 1931, became vacant and deserted.

While the superintendent remained in possession he sent to the plaintiff each month an amount equal to the sum reserved in the lease, in payment for his use and occupation. Each of the payments was accompanied by a notice that the superintendent had not determined whether to adopt or reject any lease and that the payment was tendered with the understanding that no...