Charles Goell Construction Co. v. Faber , 238 N.Y.S. 524 ( 1929 )

Noonan, J.

The action was brought to recover the rent for the months of February to September, 1929, both inclusive, under a written lease of an apartment commencing November 1, 1927, and terminating September 30, 1929. The defendant tenant pleads as a separate defense that on February 27, 1929, the defendant filed a petition to be adjudged a bankrupt, and listed in the schedules the plaintiff’s claim, and that on the same day defendant was adjudged a bankrupt. A motion was made to strike out this defense as insufficient in law.

It has been held in this State, and must be regarded as the law, that under section 63 of the Bankruptcy Act (U. S. Code, tit. 11, § 103; 30 U. S. Stat. at Large, 562), rent accruing after the filing of a petition in bankruptcy is a contingent and not a fixed liability, and, therefore, is not provable against the bankrupt’s estate. (2 Remington Bankruptcy [3d ed.], § 793; 2 Collier Bankruptcy [13th ed.], p. 1422; Matter of Roth & Appel, [C. C. A.] 181 Fed. 667; Schneck v. Lewis, 121 Misc. 370; affd., 211 App. Div. 853; Scott v. Demarest, 75 Misc. 289.)

The motion to strike out the defense of bankruptcy embraced in paragraphs 4th, 5th and 6th of the defendant’s answer is granted. Order signed.