212 F. 452 | S.D.N.Y. | 1914
Yet even treating the bankruptcy as a discharge I think that the claim remained contingent, for a wrongful discharge, like all other wrongful attempts to terminate a contract, while it gives the other party himself the right to terminate, imposes upon him no obligation. Phenix National Bank v. Waterbury, 197 N. Y. 161, 90 N. E. 435. The servant may sue at once by hypothesis for all his wages, but he may also wait until they become due and then .sue. It is true that by waiting he subjects himself to the risk of having taken by way of set-off the estimated value of his services, rather than his actual earnings, but that is all he assumes. It is by no means impossible that a servant might prefer to wait over a period of adjustment and tender his services to the old master who had composed with his creditors, or got his discharge, rather than to prove against his estate. Therefore the case seems to me throughout analogous to Re Roth & Apfel, supra, where the lessor’s claim was disallowed upon a covenant to pay the loss if the lessor reentered and relet after bankruptcy. In that case Judge Noyes relied upon the fact that the lessor might not choose to relet, if he preferred to wait, and that his option prevented the claim from being absolutely fixed at the moment of bankruptcy.
Order affirmed; petition dismissed.