169 F. 1017 | S.D.N.Y. | 1909
I am not able to concur with the conclusion of the referee in this case. Under the bankrupt act of March 2, 1867 (14 Stat. 517, c. 176), the filing of the proof of claim was a waiver of a right of action on the claim in another court. The present bankrupt act does not contain such a provision, but it provides
I do not think that the doctrine that an action pending in a court is a bar to a subsequent action on the same claim in the same court has any application. In the first place, an action pending in a state court is no bar to another action on the same claim in the United States court, and vice versa. In the second place, if the case is pending in the same court, the defense of a former action pending must be duly pleaded in the second action. The defendant in such second action cannot let the case go to judgment, and then, if the judgment does not suit him, claim that the pendency of the former action is a bar. S.o a trustee in bankruptcy cannot abstain from obtaining a stay of a ;suit pending in a state court, and then, if the judgment recovered is unsatisfactory to him, claim the right to have the claim liquidated over again by a proceeding in the bankruptcy court. Moreover, in this case the action was brought in the state court before the defendant went into bankruptcy, so that, if this doctrine had any application, the state court suit would bar the proceeding to reliquidate in bankruptcy; but the entire doctrine has no application to such cases, in my opinion. If the trustee is dissatisfied with the amount of the judgment, his remedy is to apply in the state court to open the default.
If no such application is made, or if such an application is made and denied by the state court, I think that the proof of claim on the judgment should stand, and the other two proofs of claim should be withdrawn from the referee’s files.