In re the Judicial Settlement of the Accounts of McIntyre , 48 N.Y.S. 785 ( 1897 )

Ingraham, J.:

We concur with Mr. Justice Patterson as to the liability of the trustee for the rents uncollected on the premises No. 25 West Seventeenth street in the city of Mew York; but upon the whole case, we do not think that the referee was justified in charging the trustee with the uncollected rent of the premises No. 58 Walker street in said city. During the time that this rent which was not collected accrued there seems to have been but little demand for property in Walker street. A considerable portion of the property in the neighborhood was vacant, and the tenants in possession of the property had, prior to the time that the rent fell into arrears, paid their rent promptly. The tenants kept a restaurant upon the leased premises, and whether or not, under the circumstances, it was to the advantage of the estate to dispossess the tenants and leave the property on the hands of the trustee, with the possibility that the incidental expenses necessary would be imposed upon the estate for its protection and preservation, or to allow the tenants to remain in possession with the hope of being able to collect something from them was a question for the trustee to determine. From the testimony we cannot say that this determination was even an error of judgment, much less such negligence as would justify the court upon the settlement of his accounts in charging him with the amount of rent uncollected because he had not dispossessed these tenants or had obtained a judgment against them and sold their property upon execution. From the evidence we should be inclined to think that the result would have been that the property would be vacant, and the trustee would thus be compelled to have incurred the expense of caring for it. It is true that after a receiver of the property was appointed he managed to collect rent from these tenants, but this amount was comparatively small; and, upon his dispossessing the tenants, he was unable to rent the property, and it remained vacant. When two courses were open to the trustee, and he had to determine which one to be followed was for the best interest of the estate, a mere error of judgment is not sufficient to impose upon him any liability ; and, from the testimony, it certainly does not appear that, if he had decided to adopt a course other than that which he did adopt, the estate would have been in any substantial manner benefited.

As stated by Mr. Justice Patterson, the circumstances as to the Seventeenth street accounts were different. He allowed the tenant of that house to remain in possession for upwards of a year, without paying any rent, until the tenant died, and then left the possession of the property with her son, who retained it until October without paying any rent; if he had dispossessed him, he would have had no difficulty in getting another tenant.

We think, therefore, that the decree of the surrogate should be modified by striking out the charge against the trustee of the amount of the rent of the premises in Walker street, and, as so modified, affirmed, the costs of the trustee to he paid out of the estate.

Van Brunt, P. J., Williams and O’Brien, JJ., concurred; Patterson, J., dissented