In re Witte

Bischoff, J.

The petitioner is one of the lessees of certain premises under a lease made by one Murphy as landlord, which lease was assigned by the petitioner and his co-lessee to the firm of Roggenkamp & Munn, of whose assets the respondent was appointed receiver in supplementary proceedings, at the instance of certain judgment creditors.

One Ernst is a tenant of the judgment debtors, under a monthly letting, and the rent from Ernst not having been collected by the receiver, the petitioner made this motion for a direction that the receiver proceed to collect the rent, the ground of the application being that the petitioner as lessee under the principal lease is liable to his landlord, and that if the receiver permits the present tenant to occupy, without the payment of rent, so much will be lost, which otherwise may be applied in part to a reduction of his (petitioner’s) ultimate liability to the landlord.

It is alleged in the petition that by reason of the death of Murphy (the landlord), leaving an infant son, there is at present no person to whom the petitioner may pay the rent due under the principal lease for the purpose of fixing his claim against these judgment debtors and placing it in judgment, hence, that he cannot protect himself as a judgment creditor, but appeals to the discretion of the court to protect him by granting the relief prayed for in the petition.

In his opposing affidavit the respondent-receiver discloses the fact to be that the principal lease calls for a rental in excess of the rent which might be obtained either from the present tenant or from a new tenant, if he should proceed to dispossess the former, and, therefore, it is urged that, in the receiver’s opinion, the estate would suffer should he recognize the principal lease for the purpose of obtaining rent from this tenant.

Where a receiver declines to recognize and enforce a lease, which is not otherwise enforceable as against him, the court will not interfere with his discretion, at least in the case where apparently sufficient reason exists for apprehending that the estate will be prejudiced should the lease be recognized. 1 McAdam Landl. & Ten. 211. Here the petitioner is not a judgment creditor, and to grant his application would be to subject the assets available to the satisfaction of the demands of the vigilant creditors to possible loss and dimunition against the reasonable protest of these judgment creditors through the receiver. Any hardship in petitioner’s position, by reason of the death of the landlord is something for which the judgment creditors are in no way responsible, and their remedy should not be impaired in an endeavor to give him a better case. Whatever other remedy this petitioner may have, need not be pointed out at this time. The relief sought in his application to the court below was properly and necessarily denied.

Order affirmed, with costs and disbursements.

Freedman, P. J., and Fitzgerald, J., concur.

Order affirmed, with costs.