Fechter v. Postel, 100 N.Y.S. 207

100 N.Y.S. 207 | N.Y. App. Div. | 1906

Hirschberg, P. J.:

The order appealed from was properly granted. The judgment which the order cancels was rendered in the Municipal Court of the city of Hew York in an action for conversion. Thereafter the judgment debtor, the defendant herein, duly filed a voluntary petition in bankruptcy, was adjudged a bankrupt and was discharged from all his debts provable in that proceeding. The judgment in question was duly scheduled in his petition and he was discharged from all liability on the judgment, provided the debt upon which it was founded is a debt provable m bankruptcy, and not excepted from the provisions which release the bankrupt from liability on his discharge.

The case of Watertown Carriage Co. v. Hall (176 N. Y. 313) is an authority to the effect that such a debt is not released by a discharge in bankruptcy under the terms of the National Bankruptcy Law. (See 30 U. S. Stat. at Large, 550, § 17.) The decision in that case, however, was based upon the cases of Frey v. Torrey (70 App. Div, 166; affd. on opinion below, 175 N. Y. 501) and Crawford v. Burke (201 Ill. 581). Since that decision, however, the Illinois case has been reversed by the Supreme Court of the United States (see Crawford v. Burke, 195 ,U. S. 176), and the rule has been therein established that a debt founded upon contract, express or implied, is provable against the bankrupt’s estate, notwithstanding the fact that the creditor may have elected to bring his action in trover as for a fraudulent conversion instead of in assumpsit. In Tindle v. Birkett (183 N. Y. 267, 271) it was recognized that the case of Frey v. Torrey (supra) must be considered as overruled by the Federal decision in Crawford v. Burke (supra). It follows that a claim for conversion is provable and dischargeable.

The order should be affirmed, with ten dollars costs and disbursements.

Woodward, Jems, Hooker and Gaye or, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.