Prince v. Schlesinger , 101 N.Y.S. 1031 ( 1906 )

Ingraham, J.:

I concur in the reversal of this judgment. I do not concur, however, in the- conclusion that the defendant as receiver was liable for the vrhole installment of rent that became due on the 1st of September, 1904.

Assuming that a permanent receiver appointed on the dissolution of a corporation could elect to accept the lease as a part of the assets of the corporation, and thus become liable undér the covenants of the lease, I think that it was at least a question of fact for the jury whether the receiver did elect to adopt this lease. As I understand the record, the only use that the receiver made of this property after he was appointed was to leave some property of the bank' in the premises until a demand was made for the premises by the landlord and the receiver was dispossessed in the summary proceedings instituted by him. I cannot see that there was any'distinct election to adopt the lease or to treat it as an asset of the bank, in which case the receiver would only be liable for the period that he actually occupied the premises. The adjudication in the summary proceedings related to the possession of the leasehold premises by the receiver. It did not adjudicate that the receiver ahad become the tenant and was liable under the lease for the rent -that became due according to the lease before the final -order in that proceeding. I think that the receiver would be liable for the rent due on. the first of June, and also for the portion of the quarter commencing on the first of September, up to the time he was actually dispossessed, and I do not think he is liable for the whole rent for that quarter.

Judgment reversed and new trial ordered, with costs to plaintiff to abide event. Order filed.