Johnston v. Merritt

J. F. Daly, J. Where an assignee under an assignment for the benefit of creditors enters upon premises leased by the assignor and occupies them for the purpose of possessing himself of the term as assignee thereof, an action may be maintained against him for the whole of the rent falling due while he is in possession (Jones v. Hausmann, 10 Bosw. 168). But [310] such an assignee who enters upon the demised premises merely to remove the goods and remains in occupation no longer than is reasonably necessary for such purpose, is not liable for the rent (Lewis v. Burr, 8 Bosw. 140). The assignee has the right to elect whether he will take the term as part of the assigned property. He will be allowed a reasonable time to ascertain whether the lease can be made valuable as an asset to creditors or not (Journeay v. Brackley, 1 Hilt. 447). He may reject the term, and is not liable unless he enters under the lease, or by some other act or omission to act determines his right to elect if he will take the lease (Carter v. Hammett, 12 Barb. 263). In Journeay v. Brackley, the assignees took possession of the stock of the assignors, entering upon the demised premises to do so, with notice to the lessors that they would have nothing to do with the lease. They remained in possession of the premises 36 days, selling the stock partly at private sale and partly at auction. The submission in this case shows that the term expired May 1st, 1881; that on April 11th, 1881, the assignee entered upon the demised premises, and remained there until the ensuing 1st of May, 19 days. The assignment did not mention the lease of the premises. The assigned stock of goods con- ' sisted partly of goods in the process of manufacture on the premises. The submission states that the defendant “ took and entered into possession of said demised premises as assignee as aforesaid for the purpose of performing his duties as such assignee.” There is therefore nothing in the submission to show, an election by the assignee to take the term, except his entry on the premises, but the statement that he took and entered into possession as assignee as aforesaid (i. a., as general assignee for the benefit of creditors without a specific assignment of the lease) is qualified by the addition “ for the purpose of performing his duties as such assignee, and occupied said premises for such purpose.” His duty as assignee was to take possession of the goods on the premises, and to enter for that purpose, and to remove them, and we cannot say as matter of fact or [311] law that the period which elapsed from April 11th to May 1st was more than sufficient for the purpose. I think judgment should be entered on the submission for the assignee with costs. Yak Hoesek, J., concurred. Judgment for defendant, with costs.