104 F. 981 | S.D.N.Y. | 1900
The principal question presented on this motion is whether an unliquidated claim that might have been liquidated and proved against the bankrupt, but which was voluntarily withheld for more than 15 months after adjudication and until the expiration of the period allowed by section 57(n) for proving claims, should be treated as a “provable debt” under section 17, so as to be barred by the bankrupt’s discharge, and entitling the bankrupt to a stay on a pending suit thereon in the state court under section 11. In my judgment it should be so treated. The facts are as follows:
On November 1, 1895, (I. W. Johnston made a written contract with the Arm of Hilton, Hughes & Co., in which the bankrupt was a partner, whereby Johnston was agreed to be employed for ñve years from that day as clerk and superin (undent at a salary of $7,500 per year, itayable monthly. Johnston continued in this employment until August 25, 1896, when the firm failed and made a general assignment to their creditors. Johnston was paid up to that date and discharged from further service. On the 4th of January, 1899, Mr. Hilton presented his voluntary petition in bankruptcy and was adjudicated a bankrupt on that day. On January 24th Johnston died, leaving a will under which his executors qualified in May following. In the bankrupt’s schedules Johnston was named as a creditor for an unliquidated demand for breach of contract. The first meeting of creditors was held on February 9, 1899. No steps were taken, by the executors to liquidate Johnston’s claim to damages for the breach of his contract until June 3, 1900, when they commenced suit in the supreme court of the state, claiming $10,000 damages. The bankrupt obtained in November, 1899, a stay of proceedings, which the executors now move to set aside, on the ground that the claim is not a “provable debt,” and would not be barred by the defendant’s discharge as a bankrupt. The question of his discharge has not yet been determined, the bankrupt’s application therefor being still in litigation.
The contract and the breach of it, upon which the demand in suit is based, originated long before the bankruptcy proceedings. It is
Similarly, section 11, as respects the stay of suits, is not confined to technical debts or fixed liabilities, but includes “a suit which is founded upon a claim from which a discharge would be a release”; and in like manner general order 30 of the supreme court (18 Sup'. Ct. viii.) extends to “claims” provable in bankruptcy. As the bankrupt is proceeding diligently for his discharge, the stay should, therefore, be continued until that question is determined. In re Schwartz, 15 N. B. R. 330, Fed. Cas. No. 12,502.