247 F. 377 | S.D.N.Y. | 1917
One Shatz owned 97 per cent, of the stock of the bankrupt corporation and had a claim against it. amounting to $34,847. Under these circumstances he signed an agreement with the company to extend the time of payment and to receive his pay out of "actual and net earnings.” The agreement recited that the company would be unable to meet its obligations to Shatz at the time of maturity, and that by reason of Shatz’s “inability to properly manage and operate the affairs and business” of the corporation he had “procured and induced other and various persons to purchase one-half of the capital stock owned by him.” The company, some time after the agreement was executed, filed a voluntary petition in bankruptcy, and was subsequently adjudicated a bankrupt without having made any net profits applicable to the payment of the claim of Shatz under the terms of the above agreement. The receiver in bankruptcy of Shatz seeks to prove the face of his claim, and the referee has rejected it on the ground that it was not a fixed liability at the time of the filing of the petition. Section 63 of the Bankruptcy Act. The claim was rejected as a matter of law upon the above facts to which the trustee in bankruptcy in effect demurred.
The discharge of the indebtedness evidenced by the old series of notes was sufficient consideration to support the new agreement to pay out of income. The proof of claim for a general indebtedness was therefore of an extinguished obligation and could not be made.
Counsel for the creditor urges upon reargument of this motion that the cases which I have cited relate to discharges of an entire obligation. Here the entire obligation was discharged. It is immaterial that a new one to pay the same amount was substituted, because it was to be paid from an entirely different source, if that source ever came into being, and consequently was a new and different obligation.
The motion to expunge the proof of claim was properly granted, and the decision of the referee is affirmed.