134 F. 566 | S.D.N.Y. | 1900
A motion is made for leave to amend the fourth specification of certain creditors in opposition to the bankrupt’s discharge by alleging the pendency of former proceedings in bankruptcy under Act March 2,1867, c. 176,14 Stat. 517, and of an application for a discharge therein which is still pending and undetermined. That specification, as it stands, states that the discharge of the bankrupt was refused in the former proceeding. Investigation shows that no order to that effect has ever been entered. The moving creditors have a claim which was proved in the former proceedings, and which has been kept alive by a judgment obtained thereon in 1898. The present motion is based upon the theory that the refusal of a discharge in the former proceeding would be res ad judicata as respects the same debt in the present proceeding, and that the pendency of the old application for a discharge would be good as a plea in abatement as of a former suit pending, and that the discharge of the old debt can only be sought or obtained in the old proceeding. On consideration, I am unable to sustain this view. Proceedings in bankruptcy are doubtless in the nature of a suit (Sandusky v. Bank of Ind., 23 Wall. 289, 23 L. Ed. 155;