On the hearing of the motion the receiver did not deny any of the facts set up in the petition of the church. It was therefore quite unnecessary' that there should be a reference. And, on this appeal, no dispute is made as to the facts. It was then only a question of law as to what relief the church should have. In the settlement of these insolvent companies, the practice of referring all claims whether disputed or not, is unfair to the claimants, and makes an improper expense for the estate.
It is not necessary for us to say whether the receiver was, or was not, personally liable for the rent during his occupation. If he were personally liable, even then it might be well for the church to 'avoid any question of contempt of court by obtaining leave to sue.
If he were personally liable, still his occupation was in the discharge of his official duties, and the court would reimburse to him anything he should be compelled personally to pay.
If he were liable only as receiver^ then he could not justly enjoy the use and occupation of the property as receiver without paying the rent. The rent in that case would not. be a claim to be paid pro rata with debts of the company. It would be like his necessary expenses, a charge on the fund. If he had chosen to abandon the possession at once, he could probably have escaped liability for the rent accruing. But as he chose to enjoy the possession he was bound to pay the rent, which was the consideration therefor.
The liability which the church seeks to enforce is for the receiver’s own tenancy; it is against him as assignee of the lease, and not for a debt owing by the company.
And in this view (whatever may be the power of the court) it would hardly be reasonable to force the claimant into a compulsory reference, as might be done if this were a claim against the company. If leave to sue were given the claimant would be entitled to a jury trial and could not be compelled to refer. The liability of the receiver appears to be the ordinary common-law liability of the assignee of a lessee to the lessor.
There was no necessity that the claimant should make any other presentation of the claim than that which was made by the motion at Special Term. ¥e think that the Special Term should either have directed payment to the claimant or should have permitted the *144claimant to sue. And under the circumstances the more just course would be to direct payment.
The order is reversed, with ten dollars costs and printing disbursements, and the receiver is directed to pay to the church the rent, $500, with interest fiom the day when the half year’s rent became payable.
The claim of St. Stephen’s church is of a similar character, and the order should be to a similar effect for the rent payable in 'that case.
Present — Learned, P. J.; Bookes and Boardman, JJ.Order reversed, and receiver directed to pay the rent, viz., $500, with interest from the time it was payable to St. Peter’s church; $1,312.50 with interest from the time when payable to St. Stephen’s church, with ten dollars costs and printing disbursements in each case.