In re F. & W. GRAND 5-10-25 CENT STORES, Inc.

In re F. & W. GRAND 5-10-25 CENT STORES, Inc. No. 181. Circuit Court of Appeals, Second Circuit. Jan. 7, 1935. Cravath, de Gersdorff, Swaine & Wood) of New York City (William D. Whitney, Carl W. Painter, and Frank H. Detweiler, all of New York City, of counsel), for appellee-petitioner-appellant Irving Trust Co. Morgan & Lockwood, of New York City (Richmond L. Brown, Charles Dickerman Williams, and Sidney J. Kaplan, all of New York City, of counsel), for petitioner-appellant-appellee John Day Jackson. Before MANTON, L. HAND, and CHASE, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The appellant Jackson filed a claim for rent under the terms of a lease, dated June 5, 1925, for premises at New Haven, Conn. The term of the lease was ten years and three months from October 1, 1927. In March, 1932, receivers in equity were appointed for the bankrupt. On March 29,1932, the receivers disaffirmed the lease. On March 30,1932, the appellant gave notice of an intention “to take steps to rent these premises to the best advantage I can and will apply the proceeds to the rent due from F. & W. Grand 5 — 10—25 Cent Stores, Inc., under my lease with that company dated June 5, 1925, and shall, of course, look to the lessees under said lease for the difference between the amount reserved in the lease and the amount actually received by me.” Bankruptcy followed in July, 1932. The court disallowed the appellant’s claim. The order is affirmed on the authority of In re F. & W. Grand 5-10-25 Cent Stores, Inc. (Claim of Possart) (C. C. A.) 69 F.(2d) 807, and Manhattan Properties, Inc. v. Irving Trust Co., 291 U. S. 320, 54 S. Ct. 385, 78 L. Ed. 824. Order affirmed. [DISSENT — MANTON, Circuit Judge] MANTON, Circuit Judge (dissenting). I dissent on the authority of In re National Credit Clothing Co. (C. C. A.) 66 F.(2d) 371, and In re Mullings Clothing Co. (C. C. A.) 238 F. 58, certiorari denied, 243 U. S. 635, 37 S. Ct. 399, 61L. Ed. 941.