Stephens v. Stein , 30 N.Y. St. Rep. 391 ( 1890 )

McAdam, C. J.

An assignee for the benefit of creditors has an election to accept or decline the lease of premises previously held by his assignor. If he enters into possession and transacts business, he will be deemed to have accepted the term. If he enters, inventories, packs, and removes the goods within a reasonable time, and no longer occupies the premises, he is not liable for the rent. Myers v. Hunt, 8 N. Y. St. Rep. 338. The defendant, as assignee, took his rights subject to the attachment previously issued against his assignors, and to the custody and possession of the sheriff, which were released January 30, 1890. The assignee was not called upon to elect whether or not he would take the term until the sheriff vacated. That he did not elect to take is evidenced, by the fact that the assignee did not take possession under the lease assigned, but under a new arrangement by the month at a reduced rent. This new arrangement abrogated the lease held by the assignors. They are personally liable up till February 1,1890. The liability of the defendant commenced on that day. He is not liable for the rent claimed, to-wit, from December 16, 1889, to February 1, 1890, and there must be judgment in his favor.