
    In the Matter of the Assignment of Frederick Link to David C. Link for the Benefit of Creditors. The New York Life Ins. and Trust Company, as Executors and Trustees of Richard Ray, dec’d, Claimant, App’lt, v. David C. Link, Assignee, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 7, 1887)
    Assignment—For the benefit of creditors—Claim for rent accruing SUBSEQUENT TO, NOT PROVABLE.
    A lessee of property having made an assignment for the benefit of creditors, and having during the same month notified the lessor of the assignment, and that he was ready and willing to deliver possession of the premises, though he did not remove for several months, and there being no evidence that the assignee has ever taken possession of the leasehold property, the claim for rent accruing subsequent to the assignment is not a provable claim.
    
      Emmet & Robinson, for app’lt; Paddock & Cannon, for resp’t.
   Larremore, C. J.

On February 12, 1885, a lease was made by the New York Life Insurance and Trust Company (as trustee), to Frederick Link, demising certain premises ■for the term of one year at the rent of $1,140, payable monthly. The tenant paid the rent reserved up to and including November, 1885.

In the month of December following, the tenant and the firm of which he was then a member, made a general assignment of his individual and co-partnership property, for the benefit of creditors. During the month of December, 1885, he notified the landlord that he had made such assignment and was ready and willing to deliver the possession of the premises in question, from which he removed in the month of April, 1886.

It is conceded that the rent of the premises was paid up to December 1, 1885, and the only question presented for adjudication is: Whether or not, the rent accruing subsequent to that date, was a provable claim under the general assignment act.

There is no proof to show that the assignee under the assignment ever took possession of the lease-hold property, or in any way intermeddled therewith; and rulings in Matter of Risley (10 Daly, 44); Matter of Adams (15 Abb. N. C., 61); Matter of May v. Brown (47 How. Pr., 37); Johnson v. Merritt (10 Daly, 308), clearly show that the assignee is not liable for the rent sought to be recovered, and point out no distinction between his liability as such, or of the assigned estate in his hands.

In the Case of The People v. National Trust Company (82 N. Y., 283,)-it appeared that the receiver had in his hands sufficient funds for the payment of all debts of the dissolved corporation. It further appeared that after such payment there was a large surplus for distribution among the stockholders. In this case, whatever surplus there may be after the payment of the individual debts of the assignor, such surplus is properly applicable in payment of the firm debts of F. Link & Son, of which the assignor was a member; and it does not appear that after such payments there would be any surplus to be returned to the assignor.

The appellant has not lost its remedy for a breach of the contract for damages against its lessee.

The order appealed from should be affirmed, with costs.

Daly and Bookstaver, JJ., concur.  