Kaufman v. Schreier

95 N.Y.S. 729 | N.Y. App. Div. | 1905

Ingraham, J. :

Joseph Kaufman and Leopold Oppenheimer recovered a judgment against the appellants on February 12. 1885, which judgment was duly docketed in the county clerk’s office of New York county on the same day. On July 19, 1899, the judgment debtors were duly discharged in bankruptcy, and upon such discharge they move to cancel the judgment.

In the schedules filed in the bankruptcy proceedings the judgment creditor is referred to as “Joseph Kaufman, Bond St., N. Y. City,” and the notices required by the Bankruptcy Law^* to be sent were sent to that address. It seems that Oppenheimer, one of the judgment creditors, died some years before the judgment debtors were adjudicated bankrupts, and that Kaufman, the other judgment creditor, was alive at the time the bankruptcy proceedings were commenced. The name of the judgment creditor Kaufman was in the' directory down to' the year 1899 as residing at No. 12 West Eighty-third street, New York. An examination of the judgment roll would have disclosed the names of the two judgment creditors, and an examination of the city directories at the time these bankruptcy proceedings were commenced would have disclosed Kaufman’s residence. In the schedule of creditors annexed to the bankruptcy proceedings Oppenheimer’s name was not mentioned, and Joseph Kaufman was described as residing in Bond street, New York city, when in fact he did not reside there, nor had he any business place there. The judgment creditors were copartners, the copartnership consisting of Joseph Kaufman and Leopold Oppenheimer. Upon the death of Oppenheimer the copartnership property vested in the surviving partner, and Joseph Kaufman then became as surviving partner the bankrupt’s creditor. He was correctly described in the schedule as the creditor; His -residence Was given as Bond-streetJ New York. The notice was sent to him.at that address, and there is evidence that that notice was not returned to the referee in bankruptcy. The bankrupts swore that they endeavored to ascertain his address without success, but it appeared without dispute that, in 1899, while the bankruptcy proceedings were pending, one of the bankrupts met Joseph Kaufman on Broadway, near Bond street, when Kaufman-remarked to deponent that he saw that deponent, and his brother were going . through bankruptcy. The deponent thereupon said that he was, and talked the matter over with Kaufman; that subsequent to that conversation and before this motion was made Kaufman died. Section 17 of the Bankruptcy Law^* provides that “ a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such ■ as. * * * (3) have not been duly scheduled in time for proof and allowance with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in -bankruptcy.”

I think that the name of the surviving partner, who was the creditor, was correctly scheduled, and the evidence shows that he had actual knowledge of the proceedings in bankruptcy, and made no opposition to the discharge. ' If Oppenheimer had been alive at the time that the bankruptcy proceedings were instituted, it is quite probable that his right would not have been cut'ofi by the discharge, as he was not named as the creditor, but as he had died before the bankruptcy proceedings were commenced and the debt had -vested in the surviving partner, I 'think it was sufficient to schedule the' name of the surviving partner as the creditor, and the surviving partner having had actual notice of the pendency of the banikruptey proceedings, the debt was discharged under the provisions of the Bankruptcy Law, to which attention has been called.

I think the order appealed from should be reversed, with ten ‘ dollars costs and disbursements, and the' motion granted.

, O’Brien, P. J., McLaughlin and Laughlin, J J., concurred; Patterson, J., dissented.

Order reversed, with ten' dollars costs and disbursements and motion granted. ,

* See 30 U. S. Stat. at Large, 561, § 58.— [REP.

* 30 U. S Stat. at Large, 550.— [REP.