182 F. 367 | E.D.N.Y | 1910
The petitioner was made defendant in an action in the Municipal Court of the city of New York for- an indebtedness alleged to be due the bankrupt estate, upon .a claim of said bankrupts amounting to $112.95. He interposed his.answer and also set up a counterclaim for $187.05. Upon a trial -of the action, judgment was rendered on the counterclaim in favor of the defendant, the petitioner herein, for a total of $241.62, while the claim on thé part of the trustee was dismissed.
The bankrupts were adjudicated upon the 2d day of July, 1908, and the Municipal Court action was not instituted-until the 18th day of January, 1910, so that the time of the petitioner to file a claim in bankruptcy expired before this action was brought. The result of the litigation in the Municipal Court has established a claim now liquidated against the bankrupts on a cause of action accruing before bankruptcy, and hence one that could have been proved against the bankrupt estate
So far as the trustee is concerned, he is responsible for the costs of the action in the Municipal Court. The estate has lost the cause of action which it supposed it had against the petitioner and against which, if it had been successful, the petitioner might have set off the claim allowed, him in that action as a counterclaim. Within the statutory period of one year (or within the extension thereof when litigation ensues provided for in section 57n of the bankruptcy statute) the petitioner could have proven his claim, if he had notice of the proceedings.’ But this-'time has expired, and, so" far as this motion is concerned, it had' expired at any time when the petitioner first had actual notice, of anything. It is too late, therefore, tó prove the claim against the estate. The creditor has successfully resisted the attempt of the trustee to-collect from him. If he owed any money to the estate, he would be entitled to set off (under section 68 of the statute) to the amount of the claim against him; but, inasmuch as it has been adjudicated thát hé owes nothing, he can only elect, if within the time for .so doing, to file a general claim against the estate for his now liquidated; judgment; or, i-f the time has expired, to hold the claim against the- bankrupts, unless they can successfully plead a discharge. • If the petitioner had not been successful in defending the trustee’s claim-, but had alsb recovered on his • counterclaim, then he would have been entitled to set off his recovery to the amount of the claim of the estate and to prove a general claim for the balance if within the period for so doing; but,'inasmuch as he has prevailed not only on his own claim, but also in entirely defeating the claim of the estate, he is entitled only to recover his taxable costs of the litigation} to be relieved of any claim on.behalf of the estate, and to be left in possession of a judgment or liquidated claim as to which he stands in the same situation as if he had'all! the.'time held an undisputed claim therefor against the bankrupts &nd th'eir estate.
. The petitioner’s application will be granted to the extent of ordering théTrustée to pay'him his'taxable costs in the action at law. As to the Balance, :he apparently must look to the bankrupts for collection.
