Dickinson v. Electric Corp.

GOULD, J.,

pro tem.

Plaintiffs’ assignor, as lessor, leased to defendant certain premises for a period of fifteen years ending December 29, 1939, for a gross rental of $360,000 payable in monthly instalments of $2,000 each, which rental was reduced by mutual agreement to $1200 per month for a period commencing April 23, 1932, and continuing until May 29, 1933, when plaintiffs gave notice to defendant that they elected to and did restore the $2,000 per month rate provided in the lease. Defendant corporation, by appropriate proceedings in the United States District Court, was placed in the hands of a receiver March 29, 1933. One of the acts of the receiver, taken pursuant to authority of the federal court, was to disaffirm and repudiate said lease as of May 2, 1933, and thereafter said receiver vacated said premises May 22, 1933, paying to plaintiffs rental for the portion of the month up to the date of abandonment, at the rate of $1200 per month. Plaintiffs thereafter notified defendant by writing dated May 23,1933, that they would within ten days “re-enter said premises and remove the contents and take possession of said premises, and re-let the same, or any part thereof, at such rental and upon such terms and conditions as they may deem proper, and apply the proceeds thereof, less the expenses, including the regular agent’s commission so incurred, upon the amount due from your corporation, and shall hold your corporation for any deficiency”. This notice further stated that acceptance of the keys to said premises “shall not operate as a termination of said lease”. Plaintiffs further alleged that they .had endeavored but had been unable to relet said premises since defendant vacated the same.

Prayer was for three separate items: (1) an alleged shortage of $240 in the rental payment made by the receiver when he abandoned the premises; (2) rental at the rate of $2,000 per month from May 29, 1933, to date of judgment (3) for

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the further sum of $800, being a deduction made by the lessee for the month ending December 29, 1932, in accordance with a provision of the lease that such sum might be deducted annually during the term of said lease from an advance “additional security” deposit of $12,000, provided the lessee at the time of such deduction could show a net worth of $100,000, it being alleged that such net worth could not be shown at the date of such deduction.