ROBINSON ET AL. v. PESANT, 53 N.Y. 419 (1873)

JEREMIAH P. ROBINSON et al., Appellants, v. JOSE A. PESANT, impleaded, etc., Respondent.

Court of Appeals of the State of New York.Argued June 12, 1873
Decided September 23, 1873

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L.H. Arnold, Jr., for the appellants.

Joseph A. Shoudy for the respondent.

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RAPALLO, J.

The liability of the defendants for the storage was a continuing liability, and bound them to pay for storing the property so long as it might remain on storage. It was in the nature of rent for the storage accommodations provided by the plaintiffs.

So much of this rent or compensation as had accrued at the time Pesant filed his petition in bankruptcy was an existing debt clearly provable against his estate, and, consequently, barred by his discharge.

But the property was suffered to remain on plaintiffs’ premises after the filing of the petition, and a claim for that subsequent storage has accrued. It is difficult to discover how the discharge of Pesant in bankruptcy can affect the claim for such subsequent storage. It was not, at the time of the filing of the petition, a liability of any sort, present or contingent, and could not have been estimated. The property might have been removed the next day after the filing of the petition or proof of the supposed claim. Neither was it a claim for unliquidated damages for the breach of a contract, for there was no agreement that the property should remain on storage for any particular time. The plaintiffs’ right to compensation, and the defendants’ liability therefor, arose from day to day, or from month to month, as the property was allowed to remain. If neither party chose to terminate the contract, every day the property remained a new obligation was created on the part of the defendants to pay for the storage. So much of this indebtedness as accrued after the filing of the petition should, therefore, be regarded as an indebtedness contracted thereafter.

The bankrupt discharge is, by the terms of the bankrupt act, and of the discharge itself, limited in its operation to those debts and claims which, by the act, are made provable against the estate of the bankrupt, and which existed at the time of the filing of the petition. It does not operate upon continuing contracts so as to permit the bankrupt to enjoy the benefits arising therefrom after the filing of his petition, and at the same time exempt him from liability for

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such subsequent enjoyment. (Stinemets v. Ainslie, 4 Denio, 573.) Section 19 of the act is intended to cover cases of this description, and to allow an apportionment where the rent or compensation is payable at stated periods. The provisions which allow contingent debts and liabilities and debts payable in futuro to be proved, have no application to such a case as this. There must be a debt or liability either as principal or surety, which, if the contingency had happened or the term of credit had expired, would be ascertainable. Here, at the time of the filing of the petition, there was no debt, absolute or contingent, but a liability to pay from day to day, so long as the property should be suffered to remain, the contract being terminable at pleasure. If the bankrupt desired to terminate his liability for future storage, he should have removed the goods.

I think the case was rightly decided at Special Term, and that the judgment of the General Term should be reversed, and that of the Special Term affirmed, with costs.

All concur.

Judgment accordingly.