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SAVAGE v. McNEANY

No. 8602.

372 F.2d 199 (1967)

George W. SAVAGE, Owner and Managing Agent, Appellant, v. Joseph R. McNEANY, Trustee in Bankruptcy, in the Matter of Hubbards, Inc., a New Mexico corporation, together with its wholly owned subsidiaries, Rankin Department Stores, Inc., a California corporation, and Weill's, Inc., a California corporation, and Commercial Discount Corporation, Appellees.

United States Court of Appeals Tenth Circuit.

January 25, 1967.

Attorney(s) appearing for the Case

Michael Keleher, Albuquerque, N. M. (W. A. Keleher, Albuquerque, N. M., with him on the brief), for appellant.

Joseph R. McNeany, Albuquerque, N. M., trustee-appellee, pro se.

Allen C. Dewey, Albuquerque, N. M. (John R. Cooney and Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N. M., with him on the brief), for appellee Commercial Discount Corp.

Before BREITENSTEIN and SETH, Circuit Judges, and KERR, District Judge.

SETH, Circuit Judge.

The trial court entered judgment sustaining a determination of the referee in bankruptcy that appellant-landlord's claim for anticipatory breach of his lease with the bankrupt was not a secured or lien claim, and thus was not ahead of the appellee, trustee in bankruptcy, nor ahead of Commercial Discount Corporation, a chattel mortgagee of the bankrupt. There is no dispute as to the rental actually accrued prior to the filing of the petition in...

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