189 A.D. 877 | N.Y. App. Div. | 1919
This action appears to have been commenced by George Graham Rice against the defendant Schneck to recover certain securities which had been advanced to Schneck to secure the payment of what is claimed in the complaint as a usurious loan. An answer was served to that complaint. In that answer it is alleged that prior to the commencement of the action and subsequent to the latest date mentioned and described in the complaint, the plaintiff duly executed a general release under seal to the defendant. To that answer a reply was served. From that reply it appears that upon the 25th day of October, 1919, a proceeding was commenced in the United States District Court for the Southern District of New York by the filing of an involuntary petition in bankruptcy against George Graham Rice, and that on or about the 4th day of February, 1918, an order was duly made and entered' by which George Graham Rice was duly adjudicated a bankrupt and on or about the said 4th day of February, 1919, John B. Johnston was duly appointed receiver in bankruptcy of all the property, assets and effects of said George Graham Rice, and thereafter duly qualified and entered upon the discharge of his duties. It is further alleged that this action is brought by John B. Johnston as receiver in bankruptcy of said George Graham Rice, in the name of the plaintiff, the bankrupt, pursuant to an order made and entered in the United States District Court for the Southern District of New York, and that the release mentioned in the defendant’s answer was executed subquent to the time when such proceeding was commenced in the Southern District of New York, in which George Graham Rice was adjudicated a bankrupt, and that such release has no force or effect. The complaint does not offer to pay to the
It cannot be claimed that this receiver may maintain this action in behalf of the judgment debtor, because the judgment debtor has disclaimed the right by giving a general release, and if the trustee in bankruptcy has no power to institute an action without a tender of the amount of the debt due, it would seem to follow that the receiver appointed by the court temporarily to collect the assets of the bankrupt could have no greater power.
The order should be reversed, with ten dollars costs and disbursements, and the motion of the defendant for judgment on the pleadings granted, with ten dollars costs.
Clarke, P. J., Laughlin, Merrell and Philbin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.