#### William Scott, Plaintiff, *v.*Francis Demarest, Defendant.

(City Court of the City of New York,

January, 1912.)

Action—Authority to bring action and control of action—Abatement and revival.

Bankruptcy — A^hat passes to the assignee and the nature of his title — Property and rights transferred.

The pendency of an action in Pennsylvania to recover rent due under a written lease cannot be pleaded in abatement in an action brought in the State of New York to recover on the same cause of action.

Rent is a provable debt in bankruptcy at the fixed and certain periods at which it falls due under the lease; hut rent to accrue on a lease not expired at the time of the tenant’s bankruptcy is not a provable debt. •

Where a tenant under a lease for a year is adjudicated a bankrupt and is granted his discharge prior to the expiration of the term of the lease, claim for rent accruing after the filing of the petition in bankruptcy does not constitute a fixed liability absolutely owing at the time of the filing of the petition within the *290meaning of the Bankruptcy Act, 1898, and is not a provable debt against the estate, nor released by the bankrupt’s discharge; but the landlord may recover such rent in an action against the tenant.

Actiob for rent.

Louis W. Stotesbury, for plaintiff.

Franklin Bien, for defendant.

G-beeít, J.

This action is brought by the plaintiff to recover for seven months’ rent under a written lease executed between the parties. The defense interposed is, *first,*that a prior action is pending and undetermined in the court of Pennsylvania between the same parties for the same subject-matter, and, *second,*that defendant has been discharged in bankruptcy from the obligation in suit.

As to the first defense of another action pending in another State, that may readily be .disposed of as without merit in that “ A party may have pending actions against the same defendant to recover the same indebtedness in different States at the same time, and the pendency of the action in one State to recover a- debt cannot successfully be pleaded in abatement in an action in another State to recover the same debt. It is only where one of the actions has ripened into a judgment that such judgment can be pleaded in bar in the other action.” Smith v. Crocker, 14 App. Div. 245; affd. without opinion, 162 N. Y. 600.

As to the defense of a discharge in bankruptcy, the question presented is whether the claim in suit on a written lease was “ provable ” at the time the petition was filed and the adjudication in bankruptcy made. The lease between the parties became operative and extended from October 1, 1910, to September 30, 1911. The subject-matter of the suit in bar is the rent for the months of March to September, 1911, both inclusive. The-petition in bankruptcy was filed December 27, 1910, and the discharge in bankruptcy is dated July 5, 1911, and under the provisions of the discharge the bankrupt was discharged “ from all debts provable against her estate which existed on the 27th of December, *2911910.” This action, it will be observed, was not brought for rent accruing prior to the filing of the petition in bankruptcy, and for such rent claim was duly presented in the bankruptcy proceedings. It is true that in the schedules of the bankrupt there was included “ a claim under contract ” which doubtless was intended to refer, and did refer, to the lease in question between the parties and to the rent thereafter to become due.

Was such claim for rent provable in bankruptcy, is the only question involved from the facts in this case. The authorities seem to be harmonious upon the principle herein presented. Loveland on “ The Law and Proceedings in Bankruptcy,” at page 234, section 120, says: “ It would seem that rent founded in contract of lease is a provable debt at the fixed and stated periods at which it falls due under the contract.” And to the same effect is Collier on Bankruptcy, ed. of 1910, pp. 720, 721. In Matter of Collignon, 4 Am. Bank. Rep. 250, it is held that “ it seems that rent to accrue on a lease not expired at the time of the bankruptcy cannot be liquidated, and is therefore not a provable debt nor affected by the bankrupt’s discharge.” In Matter of Arnstein, 101 Fed. Rep. 706, it is held that, “ where a tenant of realty under a lease for a term of years becomes bankrupt, the landlord is entitled to prove a claim against his estate only for rent due at the time of the filing of the petition in bankruptcy, not for rent which would have accrued .during the remainder of the term. Such unaccrued rent is not a fixed liability absolutely owing at the time of the bankruptcy, but only an unmatured obligation to pay in the future a consideration for the future enjoyment and occupancy of the premises.” In Watson v. Merrill, 136 Fed. Rep. 359, it was held that *“*rents which the bankrupt had agreed to pay at times subsequent to the filing of the petition in -bankruptcy do not constitnte a provable claim under the Bankruptcy Law of 1898, because they are not a *‘*fixed liability * * * absolutely owing at the time of the filing of the petition against him,’ and because they do not constitute an existing demand.” In Roth v. Appel, 174 Fed. Rep. 64, it was held that “ installments of rent which a bankrupt has *292agreed, to pay at times subsequent to the filing of tho petition in bankruptcy do not constitute *‘*a fixed liability * * * absolutely owing at the time of the filing of the petition ’ within the meaning of the Bankruptcy Act, and claims therefor are not provable debts against the estate'.” The question has also been directly passed upon by the Appellate Division-in this department. In Witthaus v. Zimmermann, 91 App. Div. 202-204, it was said: “Nevertheless, the weight of authority, as well as reason, we think, sustains the contention that a discharge in "bankruptcy does not terminate a lease or change the legal relation of landlord and tenant *‘*unless,’ as stated in Brandenburg on Bankruptcy (3d ed., § 1171), ‘ the landlord re-enters or the trustee assumes the lease, in which event'the adjudication operates like any other assignment and all liability of the tenant ceases.’ ”

From these authorities it seems conclusively established that the claim for rent, the subject-matter of this suit, was not provable in bankruptcy, and even the filing of the claim for the remainder of the rent not yet accrued or due, or the schedule of the same by the bankrupt, would not and couhj not have made the same “ provableand, "consequently, I am of the opinion that plaintiff is entitled to judgment- for the full amount claimed — $727.05—-and I award judgment for the said amount; and let it be entered accordingly.

Judgment for plaintiff.