Columbia Bank v. Birkett

36 Misc. 391, 73 N.Y.S. 704

• Court: New York Supreme Court
• Decided: November 15, 1901
• Status: Published

Opinion

Clarke, J.

This is an action on a promissory note. Defense, a discharge in bankruptcy. Plaintiff seeks to avoid the effect of the discharge upon the ground that, under the provisions of subdivision 3 of section 17 of the Bankruptcy Act of 1898, this debt was not discharged because it was “ not duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt.” The debt was scheduled, but the name of the creditor was not. The name in the schedule was the original payee. The proof established the fact that the bankrupts knew plaintiff wa,s holder of the note in question, and had applied for an extension of time for payment of it. Plaintiff received no notice of the bankruptcy proceedings, and acquired no knowledge thereof until long after the discharge pleaded and proved. “ The defendant had no right to altogether ignore the plaintiff and his demand, unless he intended, as the act proclaims, that the plaintiff should not be bound by the proceeding in which he was so ignored.” Tyrrel v. Hammerstein, 33 Misc. Rep. 505. Judgment directed for plaintiff for. $750, with interest from April 5, 1899, costs, and extra allowance of five per cent.

Judgment for plaintiff, with interest, costs, and extra allowance of five per cent.