
    Charles L. Walton, as Assignee, etc., of Francis T. Walton, Plaintiff, v. Robert Stafford and Others, Defendants.
    
      Assignee for creditors —?■ his liability on the covenants of a lease while he occupies the premises restsion privity of estate — he is not liable for rent which became due before his occupation—judicial notice that the first day of a month was Sunday.
    
    An assignee, who enters under the assignment into the possession of property leased to his ¡assignor, is liable upon the covenants of the lease during the period of his own occupation, because of the privity, of estate created by such entry. Where a tenant, who has covenanted in a written lease to pay an installment of rent upon the first day of a month, makes ¡a general assignment for the benefit of creditors upon the second day of the month, his assignee, who thereupon enters and occupies the demised premises, is not obligated, by reason of the privity of estate between himself and his assignor, created by such assignment, entry and occupation, to pay the installment which became due . on the first day of the month.
    The trial court is not bound, in such a case, to take judicial notice of the fact that the first day of a month was Sunday, and that, consequently, the rent was payable on the second, unless that fact is brought to its notice, and, if not, ' such fact must be disregarded by the appellate court.in reviewing the judgment.
    Motion by the defendants, Robert Stafford and others; for judgment upon an order of the Trial Term of the Supreme Court,.bearing date the 33d day of September, 1896, and entered in the office of the clerk of the county of New York, directing a verdict in favor of the defendants for $3,013.86, subject to the opinion of the Appellate Division.
    On the 28th day of February, 1893, the defendants leased to plaintiff’s assignor, Francis T. Walton, the premises known as the Grand Hotel in the city of New York, for a term of four years and six months, at an annual rental of $51,000, payable monthly in advance on the first day of each month during the term. One installment of rent under this lease became due on the 1st of January, 1894. That installment was not paid. On the 2d day of January, 1894, Walton made a general assignment for the benefit of creditors to the plaintiff. Immediately upon the execution of this assignment the plaintiff, professing to act under authority thereof, entered into possession of the demised premises, and continued to operate the same as a hotel until about the 29th day of January, 1894, at which time a warrant in dispossess proceedings was issued, and the plaintiff thereupon surrendered possession of the premises to the defendants. During the month of January, while operating this hotel, plaintiff collected rent from sub-tenants, hired the employees, and carried on a general hotel business, but paid no rent therefor. Upon the 2'Yth day-of January, 1894, the plaintiff, as assignee, sold certain portions of the assigned property, to the defendants for the agreed sum of $811.16, no part of which has been paid. This action is brought to-recover this sum. The defendants seek to counterclaim the rent for January, 1894, and claim judgment therefor, after crediting the price of the goods. These facts being admitted, the trial judge directed a verdict in favor of the defendants for the amount of their counterclaim (less $811 and interest), subject to the opinion of this, court.
    
      Eseh Oowen, for the plaintiff.
    
      Jamies M. Gifford, for the defendants.'
   Babrett, J.:

The sole question here is as to the validity of the defendants* counterclaim. Were they, upon the agreed facts, entitled to recover from the plaintiff, in his «representative capacity, the rent payable upon the first day of January ? The plaintiff, being an assignee for the benefit of creditors, had an election to accept or decline the lease. .He had a reasonable time to ascertain whether this lease could "be made available for the benefit of the creditors whom he represented. If, thereupon, he found that the term, burdened with the j>ayment of rent and the performance of other conditions, was" an interest of no value; that instead of being a benefit it would probably, diminish the amount to which the creditors would otherwise be entitled, his duty was to decline the lease. If, however, his investigation led him to believe that the lease-was a valuable asset, he could, as, in fact, he did, accept it. (Journeay v. Brackley, ' 1 Hilt. 447.) Hpon its acceptance it became a part of' the assigned estate, held by the assignee in his. trust capacity subject to the covenants contained therein. "While it was so held the assignee, in his representative: capacity, was chargeable with all the conditions attached thereto. It was not his contract, either personal or as representative^ and his liability upon the covenants was, consequently, not contractual. That liability was the liability of his assignor’s estate, legally resulting from its acquisition of the lease as an asset. It was, therefore, the plaintiff’s liability as assignee.

In the present case the assignee accepted the lease and utilized the demised premises for the benefit of his cestuis que.i/riost. Privity of estate was thus established, and as -a sequence the plaintiff’s liability as assignée for the rent falling due during the period of his occupation. This was a liability which ceases upon his eviction by the lessor, or upon his assignment of the lease to a third person, with surrender of possession. His liability while in possession, however, was not for use and occupation (Kiersted v. Orange & A. R. R., 69 N. Y. 343), or upon a quami/wm meruit (as erroneously held in Foster v. Oldham, 4 Misc. Rep. 201, and Smith v. Wagner, 9 id. 122), but upon the covenants of the lease. “Where a lessee .assigns his whole estate,” said Judge Rapallo, in Stewart v. Long Island R. R. Co. (102 N. Y. 607), “without reserving any reversion therein in himself, a privity of estate is at once created between his assignee .and the original lessor, and the latter has a right of action directly against the assignee, on the covenant tp pay rent, or any other covenant in the lease which runs with the land.” This liability results, not from privity of contract —- for there is no such privity — but solely from privity of estate. The lessee’s estate is. burdened with the covenants running with the land, and the assignee takes the term for this trust estate subject to the burden. It follows that the plaintiff is liable only upon such covenants as matured during the period of his possession. Upon the agreed state of facts it appears that one of the covenants was' to pay the January rent upon the first day of that month. The lease was not assigned until the next day. Consequently the assignee, as such, was chargeable with no primary liability for the January rent, upon his assumption of the lease. That rent was a debt of the assignor, existing at the time of the execution of the assignment, and provable as such against the assigned estate.

It is, however, suggested that the first day of January fell on Sunday, and that, therefore, the obligation accrued on the next day (Monday, January second), which was the day when the assignment was executed and delivered. Nothing of the kind appears in the record, and the suggestion is made for the first time upon this appeal. The stipulation is explicit that the assignor was obligated to pay the rent for the month of January on the first day of that month. It was upon this agreed fact, and upon that alone, that the learned trial judge made his ruling. We are asked to supplement this fact with'an other fact which has never been agreed upon, and to do so by taking judicial notice of the coincidence of the first day of the week with this day of the month. We do not think this would be proper upon the present appeal. The matter was not called to the attention of the court upon the trial, nor was the court there asked to take judicial notice of the fact now- suggested, or to consider any fact in addition to those agreed upon. That the first day of January -fell upon Sunday was a fact like any other fact. It is true .that it was not a fact which the defendants were bound to qtrove in the ordinary way, but it was none the less a fact which they were required •—if they desired its consideration — to place in some way before the court and jury. They were, at least, bound to bring the fact to the attention of the court, and to claim for it judicial notice. As they did not do this, the fact is not in the case, and it cannot be got into the case without giving the stipulation an effect not contemplated hy the parties when they entered into it. It is our duty to give the appropriate judgment solely upon those facts which the ■defendants chose to present below, and which alone appear in the .record. We can neither add independent facts, nor additional facts tending to vary the ordinary effect of those specified in the stipulation.

We may add that the court is not invariably bound, sua sponte, to-take j udicial notice of whatever ought to be generally known. Attention must first be called to the fact, and even then, the party asking-the court to take judicial notice thereof must, at the judge’s request, furnish the proper books or documentary evidence wherewith to-refresh his recollection. Where the memory of the j udge is at fault, he may refuse to take judicial notice of the fact, unless such books- or documentary evidence are produced. (Steph. Dig. Law of Ev. art. 59; Scheffier v. Minneapolis & St. Louis Ry. Co., 32 Minn. 521.) But the. whole matter is within the judicial discretion. The judge is not obliged to take judicial notice of the fact, but is at liberty to do so in his discj'etion. (Hunter v. N. Y., O. & W. R. R. Co., 116 N. Y. 621.) If, however, he does take judicial notice of such fact, he may inform himself of it in any way which he may deem best. (1 Greenl. on Ev. [15th ed] 15, and cases cited in note.)

How the trial judge here "would have acted -had the coincidence in question been - brought to his notice, we cannot know. There was, as we have seen, no reference thereto before him. Nor was-there any offer of an almanac or other chronicle, either upon the trial or upon even this appeal. - The effort now is to induce us to ignore these conditions and upon this appeal to supplement carefully formulated facts which were reduced to writing, and upon which the decision, under review was made, with another fact to which the parties have never agreed and to which they might never have agreed.

We think it would he unjust to inject this other fact into the-stipulation of the parties without their- consent, or to decide the controversy upon anything save the precise facts upon which they have-specifically agreed. Upon those facts, we think, the counterclaim here should be dismissed, and judgment directed for the plaintiff for the sum of $811.16, with interest from the 27tli day of January,. 1894, with cost's. , -

Van Brunt, P. J:, Rumsey and Patterson, JJ., concurred; Williams, J., concurred in result.

Judgment directed for plaintiffs for the sum of $811.16, with interest from January 27, 1894, with costs.  