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In re WIESSNER.

(District Court, E. D. New York.

May 14, 1902.)

Bankruptcy—Premises Occupied by Trustee—Right to Recover Rental.

A receiver appointed for the property of a bankrupt took possession of the premises occupied by the bankrupt under the supposition that they were a part of the bankrupt’s estate, and later such premises were occupied by the trustee. The premises were in fact leased to a corporation with which the bankrupt was connected. The lessor made no demand for possession, but subsequently commenced an action in a state court against the corporation in which judgment was recovered for arrearage of rent and for possession, and possession was surrendered to the officer thereunder, iHeld, that the lessor was estopped by such proceedings from recovering rental from the trustee.

In Bankruptcy. On petition for an order directing the trustee to pay rental for premises occupied by him.

Byram E. Winters, for petitioner.

Kenneson, Crain, Emley & Rubino, for trustee.

THOMAS, District Judge.

The petition of Margaretha Wiessner for an order directing the trustee to pay the petitioner the reasonable value of the use and occupation by the trustee of certain premises is hereby denied. On the 6th of June, 1900, the receiver took possession of the premises upon the supposition that they belonged to the bankrupt, and continued therein until August 7, 1900; whereupon the trustee, having been appointed, occupied the premises, in connection with the main property, until the 19th of June, 1901. Possession of the premises was not demanded by the petitioner or by any person in her behalf. It appears that on May 22, 1900, the petitioner leased the premises to the Oscar E. A. Wiessner Manufacturing Company for the period of 10 years from May 22, 1900, at an annual rent of $2,400; that on September 17, 1901, one Charles M. Pracht, an agent of Margaretha Wiessner, filed a petition in the municipal court of the city of New York, wherein he stated that on September 1, 1901, the lessee named owed the petitioner $2,200, as eleven months’ rent for the premises, from October 1, 1900, to September 1, 1901, and asked that such proceedings be taken as should dispossess- the lessee from said premises; that pursuant to such proceedings a judgment -was, on September 20, 1901, rendered, finding that $2,200 was due as rent from the lessee to the petitioner, and decreeing that the petitioner should have possession of the premises, •and that a warrant of attachment should issue to remove the said tenant therefrom; that such warrant was issued, and on September :21st the return was duly made, stating that pursuant to the warrant the marshal had put the petitioner in full possession of the premises. The proceedings dispossessing the lessee were in proper form. There is no evidence that the petitioner ever disclaimed the same, until it was found that such action estopped a recovery under the present petition. Even then the petitioner offered no evidence until this motion had been argued, whereupon an affidavit was offered tending to show that the summary proceedings were without petitioner’s authority. Such a contention cannot be maintained to vitiate the verity of the proceedings, the benefit of which the petitioner has had.

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