192 F. 445 | W.D.N.Y. | 1911
The trustee objected to proving the claim, on the grounds (1) that it was not filed within one year after the adjudication, as required by section 57n; and (2) that it was not “a fixed liability absolutely owing,” under section 63a. The referee was of the opinion that the claim was not liquidated by litigation, and therefore it could not be proved under section 57n. Taking into consideration section 63, subd. 1, of the bankruptcy act, in connection with subdivision 4, I think that the claim was provable as one founded “upon contract express or implied,” and the language of subdivision 1, i. e., “fixed liability absolutely owing,” does not limit the broad term of subdivision 4. In re Smith (D. C.) 146 Fed. 923, 17 Am. Bankr. Rep. 112; In re Gerson, 107 Fed. 897, 47 C. C. A. 49, 6 Am. Bankr. Rep. 11; In re Overman, 109 Fed. 65, 48 C. C. A. 223, 54 L. R. A. 369, 6 Am. Bankr. Rep. 324.
The trustee claims that there is a marked distinction between liabilities created by indorsement of a promissory note not due at the time of filing the petition and such as arise on a surety bond. But the facts of the Gerson Case, upon which reliance is placed, are quite analogous to the one here, and the same principle controls. True, it was a contingent liability; but, nevertheless, it was a 'fixed liability at the time the petition was filed. In my opinion the claim must be deemed to have been liquidated by the litigation, as the text has it, in that the liability became enforceable only by the finalities of the litigation pending between the bankrupt and Whipple. Certainly Whipple, the judgment debtor, could have filed a claim for costs against the bankrupt estate on the failure of the surety to pay; but, as the latter
The order of the referee must be reversed, and the claim allowed.