141 N.Y.S. 314 | N.Y. App. Term. | 1913
The defendant-Liberman filed a petition and schedules in bankruptcy on February 27, 1912. He had previously executed a note, which was indorsed by his wife, to one Charles F. Keyes. This ■note the defendant Liberman scheduled in his bankruptcy proceedings. On March 22, 1912, the due date of the said note, plaintiffs instituted an action in the Municipal Court, claiming to be holders of the said Jiote in due course. They obtained a judgment against the defendant
The case of Columbia Bank v. Birkett, 174 N. Y. 112, 66 N. E. 652, 102 Am. St. Rep. 478, does not apply, because in that case the debtor, ^before filing his schedules, knew of the transfer of the note. Section 17, subd. 3, of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. .550 [U. S. Comp. St. 1901, p. 3428]) provides that a bankrupt is not ■ discharged from those debts—
• “which have not been duly scheduled in time.for proof and allowance, with :,the name of the creditor if known to the bankrupt, unless such creditor had notice or actual notice of the proceedings in bankruptcy.”
I think that, therefore, if the bankrupt learns of the transfer of a -debt, made after the filing of his schedules and before his discharge, •then he must amend his schedules and give notice to the new creditor; •but, if such new creditor has notice of the bankruptcy proceedings, such an action on the part of the bankrupt is not necessary. Here the bankrupt had notice, by the action commenced against him, of the transfer of the debt,- made after he filed his schedules and petition.
It is claimed, however, by the respondent, that he has proof that the creditor had actual notice of the proceedings in bankruptcy. We shall ■therefore reverse the order, without costs, but with disbursements to -appellants, and without prejudice to respondent’s application for a re-.argument in the court below. All concur.