Merchants Bank v. Miller

176 A.D. 412, 162 N.Y.S. 999, 1917 N.Y. App. Div. LEXIS 4725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1917
• Status: Published

Opinion

Jerks, P. J.:

“ Obviously, what is and what is not c due scheduling, ’ must depend largely upon the facts of each case.” (Remington Bankruptcy [2d ed.], § 2762.) We think that the scheduling of this creditor as the “ Merchants Bank of Brooklyn,” without further statement as to its address, was sufficient. Collier on Bankruptcy (9th ed. p. 234) says the purpose of the schedule is threefold: “ (a) to give the court information as to the persons entitled to notice, (b) to inform the trustee as to the claims against the estate and the considerations on which they rest, and (c) to an extent at least, to limit the effect of the bankrupt’s discharge to parties to the proceeding.”

It does not appear that there was any other Merchants Bank of Brooklyn. And presumably there was not, because there would thereby be a violation of the statute. (Gen. Corp. Law [Gen. Laws, chap. 35; Laws of 1892, chap. 687], § 6, as amd. by Laws of 1900, chap. 704, and Laws of 1902, chap. 9; since amd. and re-enacted by Gen. Corp. Law [Consol. Laws, chap. 23; Laws of 1909, chap. 28], § 6; as since amd.) The bankruptcy proceedings were had in a court whose district embraced ‘ £ Brooklyn. ” And “ Brooklyn ” was the proper post office address of any resident of that place, although Brooklyn was a borough of the city of New York. There could be no ambiguity either as to the entity thus described or as to the entity thus addressed. Would any one seriously think that a notice mailed in the post office in Brooklyn by a referee in bankruptcy of that court and addressed “ Merchants Bank of Brooklyn, Brooklyn,” (or even without the further addition of “Brooklyn”), would fail of transmission for a defective address ? Very little probative force can be found in the affidavits in opposition. The judgment was recovered in 1900. The discharge in bankruptcy was given in 1902. The exact dates of the merger of the bank with the Union Bank, or of the liquidation of the Union Bank, do not appear. But it must have been aftér the lapse of many years, for the deputy superintendent of banks in charge of the liquidation deposes that he was not appointed until November, 1915. The affidavits indicate that no search was made for the existence of any notice or record of any notice of the bankruptcy until after June, 1916. We are not informed as to what papers or records were preserved after the merger and after the bank had ceased to be a going concern throughout these many years. Neither the notice nor a record thereof was in itself evidence of any value, such as would naturally be preserved. And the burden was upon the creditor and upon those who stood in its shoes. (Matter of Peterson, 137 App. Div. 435; Stevens v. King, 16 id. 377.) Graber v. Gault (103 App. Div. 511), cited by the appellant, is considered and discussed by the court in Peterson’s Case {supra), and, for the reasons stated therein, need not be considered as authority in the case at bar.

I advise affirmance of the order, with $10 costs and disbursements.

Thomas, Mills and Putnam, JJ., concurred; Carr, J., not voting.

Order affirmed, with ten dollars costs and disbursements.