The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910. Page: 68
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174 PEDERAI REPORTED.
tion of the referee was armed by the' judge, citing cases already referred to,
as holding that rent which had not accrued at the tine of adjudication could
not be proven. Of these dses he remarks that they are not in accord as to
the method of reasoning by which the conclusion is reached. Obviously the
claim the judge had before him was as to 12 months' rent, an unliquidated
one at the date the claim was filed, and then neither due nor susceptible of
liquidation. In conformity with the decisions, he rejected it under subdivision
1 of section 63a. There was not, and could not have been, any attempt to of-
fer to prove the claim under subdivision 4 of section 63a.
The review of the decisions shows that much has been written. The accord
is rather in the results reached than in the reasoning. There has been little
or no discussion of the province of subdivision 4 of section 63a. In large part
the claims dealt with by the reported cases, and rejected as not provable under
subdivision 1 of section 63a, have been claims contingent in character at the
date of filing, and not such as could be offered under subdivision 4 of section
63a. The unsatisfactory state of the law is therefore my only excuse for add-
ing or inviting further writing on the subject involved.
I regard the contract of lease as not terminated by the adjudication. Un-
der the reasoning in Re Smith (D. C.) 17 Am. Bankr. Rep. 112, 146 Fed. 923,
and in Re Dunlap Carpet Co. (D. 0.) 20 Am. Baukr. Rep. 882, 163 Fed. 541,
notwithstanding In re Mahler, supra, I regard installments of rent falling due
and payable after the date of the filing of the petition or the date of adjudi-
cation, which may or may not be contemporaneous, and within the period of
one year limited by subdivision "n" of section 57, as provable under subdi-
vision 4 of section 63a. unless it be held (as I am not prepared to hold) that
the expression as provable under subdivision 1 of a fixed liability evidenced
by an instrument in writing absolutely owing at the time Of the filing of the
petition is the exclusion from provability under subdivision 4 of a fixed lia-
bility on such an instrument absolutely owing at any later time. As seen, this
has not been so held in respect to commercial paper, nor apparently was it
the view of Referee W. H. Hotchkiss in Re Collingnon, 4 Am. Bankr. Rep.
250, 252. The reasons of this learned referee in this case, before referred to
as those of expediency, seem to me the only ones for confining a claim for
rent provable in bankruptcy to the rent absolutely owing and actually due at
the time of the filing of the petition.
In accordance with these views, I will grant an order expunging the claim
filed July 14, 1908, to the extent of $450, or, in other words, for the deficiency
of rent claimed for the months of August, September, October, November, and
December, 1908, and January, 1909. In all other respects the trustee's motion
is denied. I hope a final expression of opinion on the provability of rent under
either or both of subdivisions 1 and 4 of section 63a may be obtained from
the judges of this district. Any party desiring a review may take the fore-
going memorandum as the referee's certificate under General Order 27 (89
Fed. xi, 32 0. C. A. xxvii) of the question presented, to wit. whether install-
ments of rent due and payable after the date of the filing of the petition or the
date of adjudication, if these two dates be not contemporaneous, are provable
under section 68a of the bankruptcy act.
James, Schell & Elkus (Robert P. Lewis, of counsel), for the motion.
Levy & Rosenthal, opposed.
HOUGH, District Judge. The hopeless confusion produced uy
conflicting decisions on the subject under review requires an authori-
tative ruling, which this' court cannot give. The matter should be
promptly taken to the Circuit Court of Appeals, and settled, at least
so far as this circuit is concerned. Therefore I shall do no more than
briefly indicate what seems to me the reason of the matter, adding
only that my view is supported especially by Watson v. Merrill, 14 Am.
Bankr. Rep. 453, 136 Fed. 359, 69 C. C. A. 185, 69 L. R. A. 719.
It must be admitted (and is not denied by any party to this litigation)
that the rent reserved in a lease is payable only at the dates prescribed
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The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910., legislative document, 1910; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38220/m1/80/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.