Stern v. Nussbaum

5 Daly 382, 47 How. Pr. 489

• Court: New York Court of Common Pleas
• Decided: June 15, 1874
• Status: Published

Opinion

Larremore, J.

The plaintiffs sued to recover a balance of account, $240 13, for goods sold during 1865 and 1868. The defendant filed his petition for a discharge in bankruptcy April 15th, 1868, in pursuance of the act of Congress passed March 2d, 1867, and his application was finally granted September J6th. 1868.

The plaintiffs do not appear as creditors in said proceedings, and had no notice thereof. The discharge in.bankruptcy was a good defense to all liabilities incurred by defendant prior to April 15th, 1868. Such a discharge cannot be impeached in a collateral proceeding, but a creditor whose rights are affected thereby, must resort to the remedy provided by the 34th section of said act (Ocean National Bank v. Olcott, 46 N. Y. 12). Nor was any subsequent promise to pay the debt so discharged legally established. The only evidence upon this point is found at folio 45 of the case, where one of the plaintiff's testified as follows: “ I once asked him (defendant) for money, and he told me he had been discharged in bankruptcy and would give me some money as soon as he got through with that squaring up. I don’t hnow what that referred to.” A new promise, to revive such a debt, should be distinct, unambiguous and certain.

It surely cannot be urged that the testimony in the case meets the requirements of the law in this respect. The most that can be said of it is that defendant’s declaration (at fol. 45) was intended as an acknowledgment of his subsequent indebtedness to the plaintiffs, incurred in September and November, 1868, and after the tiling of his petition in bankruptcy.

To the amount of such subsequent indebtedness and interest, $53 57, the judgment herein should be reduced and affirmed for that amount.

Robinson, J., concurred.

Ordered accordingly.