
    In the Matter of the General Assignment for the Benefit of Creditors of Pat Rooney Produce Co., Inc., Assignor, to Jack Silverstein and George C. Lovece, Assignees.
    Supreme Court, Special Term, New York County,
    September 30, 1940.
    
      Herman M. Kessel, for the creditor.
    
      Joseph Heller and Harry Rosenheim, for the assignees.
   Steuer, J.

This is an application by assignees for the benefit of creditors to expunge a claim filed with them. The claim is based on a contract for the leasing of two trucks to the assignor. It consists of two parts, one for rent of the trucks accrued prior to the date of the assignment and there is no objection to this part of the claim; the other is for damages for the balance of the term of the lease. It is calculated by crediting the lessor with the rentals for the unexpired portion and then deducting his calculation of what the expenses would be.

It appears that pursuant to section 13 of the Debtor and Creditor Law, the debts of an assignor may be proved if founded on a contract This does not mean that future liabilities of the assignor depending upon contingencies may be proved. Particularly it has been held that the future rental upon a lease of real property is not a provable claim against the assignor’s estate. (Matter of Friedman & Bro., Inc., 150 Misc. 209.) Nothing in the well-reasoned opinion in that case points to any possible distinction between a lease of real property and personalty.

The motion is granted to the extent of expunging the claim for the unexpired portion of the lease.  