Foster v. Welles

236 A.D. 885

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1932
• Status: Published

Opinion

Judgment affirmed, with costs, on the ground that the order of the referee in bankruptcy in Matter of Premier Refining and Manufacturing Company, a bankrupt, disallowing the claim of Edward L. Foster, was not on the merits but was a dis-allowance of the claim upon the default in appearance of the claimant and, therefore, not a determination upon the merits. Certain findings of fact disapproved and reversed and new findings made. All concur, except Taylor and Thompson, JJ., who dissent and vote for reversal on the law and facts upon the ground that on the face of the record the proceedings in the Ohio bankruptcy court were regular and show that the plaintiff’s claim was there dismissed on the merits and that the order of the Ohio court is res adjudícala as to plaintiff's cause of action.