
    Metropolitan Life Insurance Company, Mortgagee in Possession, Plaintiff, v. Nathan Levinsky, Defendant.
    Supreme Court, New York County,
    September 14, 1934.
    
      Francis X. Dineen, for the plaintiff.
    
      Goldstein & Goldstein, for the defendant.
   Lauer, J.

This is a motion for summary judgment. The action is instituted by the plaintiff to recover for the rent alleged to have become due after defendant was adjudicated a bankrupt. Plaintiff seeks, to recover for rent for the months of April, May,- June, July, August and September at the rental of $166.67 per month and for certain arrears alleged to be due. Defendant sets up as a defense the fact that he had listed in his schedules in bankruptcy the rent due up to March 1, 1933. The question to be decided herein is whether or not the defendant is obligated to pay the plaintiff the rent, sought. The defendant’s affidavit sets forth his contention that the. rent for April and May has been paid to the plaintiff. This creates a question of fact to be determined upon a trial. The listing by the defendant of the plaintiff’s claim for rent in his schedules up to March 1, 1933, does not reheve him from liability for rent after his adjudication as a bankrupt, as such rent would be future rent. (Matter of Roth v. Appell, 181 Fed. 667; Watson v. Merrill, 136 id. 359; Campbell Construction Co., Inc., v. Garai, 140 Misc. 603.)

The cases heretofore cited were applicable at the time the defendant was adjudicated a bankrupt, and section 63 of the Bankruptcy Act (U. S. Code, tit. 11, § 103) which was amended on June 7,1934, is inapplicable to reheve the defendant of his obhgation. Disregarding, therefore, the rent for April and May, the plaintiff would still be entitled to rent for the months of June, July, August and September, 1933, at the rate of $166.67 per month. The motion for summary judgment is, therefore, denied as to all indebtedness occurring prior to the defendant’s adjudication as a bankrupt; denied as to the rent for April and May; granted as to the rent for June, July, August and September; otherwise denied. Settle order on notice.  