180 F. 417 | 3rd Cir. | 1909
On August 12, 1908, Harry K. Thaw was adjudged a bankrupt on his own petition by the District Court for the Western District of Pennsylvania. On August 28, 1908, John B. Gleason, an attorney and counsellor at law of the city of New York, commenced an action at law against Thaw in the United States Circuit Court for the Southern District of New York. On September 7, 1908, Roger O’Mara was appointed trustee in bankruptcy of Thaw’s estate, and on October 24, 1908, the court in which the bankruptcy case was pending, on the application of the trustee and without notice to the plaintiff Gleason, made an order staying Gleason’s action in New York, and subsequently refused, on Gleason’s application, to take off the stay. This refusal is the subject of our present consideration.
The plaintiff, Gleason, contends that his action is founded on a ‘liability for obtaining property by false pretenses or false representations,” and that under the provisions of section 17 (2) and section 11 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 550, 549 [U. S. Comp. St. 1901, pp. 3428, 3426]) the court erred in staying his action and in refusing to dissolve the stay. By the third paragraph of the complaint filed in the action in New York, Gleason al
Assuming, therefore, for the purposes of this case, that a liability for an attorney’s services is a liability for obtaining property within the meaning of section 17 (2) of the bankruptcy act, we think the plaintiff failed to set out in the complaint in his case in New York a liability for obtaining such property by false pretenses or false representations. The contract for his services seems to have antedated all of the alleged false pretenses and false representations of Thaw. It follows that the action was not one which could not be properly stayed under the provisions of section 11 of the bankruptcy act.
The order of the District Court is affirmed, with costs.