Opinion
No. 4858.
August 25, 1932.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Proceedings by the People's-Pittsburgh Trust Company for the allowance of a prior claim against the J.G. Still Company, bankrupt, opposed by R.H. Coleman, trustee in bankruptcy. The claim was allowed as a prior claim by the referee, the referee's order was affirmed by the District Court, and the trustee appeals.
Affirmed.
Claimant's assignors leased demised premises to bankrupt, together with tools and equipment for five-year term at monthly rental of $400, without apportionment thereof as between use of building and the tools, consisting of lathes, testing tables, drills, vices, reamers, small hand tools, an electric motor set in concrete, spark plug tester, and compressor. After the bankruptcy, the goods on the premises were sold for an amount more than sufficient to pay the unpaid rent, which was claimed as a priority under Act Pa. July 17, 1919, P.L. 1029 (39 PS § 96). The claim was allowed by the referee, and the District Court affirmed his action. The act of 1919 provides that in bankruptcy the landlord shall be entitled to receive as a priority from the proceeds of the goods on the premises and subject to distress the sum due the landlord as rent for not to exceed one year.
A.E. Kountz, C.A. Fry, and Kountz Fry, all of Pittsburgh, Pa., for appellant.
James M. Graham and Patterson, Crawford, Arensberg Dunn, all of Pittsburgh, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
In this case the premises were rented as a garage and the substantial part of the tools, lathes, etc., were attached to the realty and were fixtures. These fixtures enhanced the value of the premises for such use. Indeed, tools of this character were necessary and indispensable in the work of a garage. The fact that some hand tools accompanied the lease is a mere minor incident. Under the Pennsylvania authorities, Mickle v. Miles, 31 Pa. 20, and Vetter's Appeal, 99 Pa. 52, it is quite clear that the landlord could distrain for rent. The other questions involved have had due consideration. Finding no error in the court's action, the decree below is affirmed.