66 N.Y.S. 780 | N.Y. App. Div. | 1900
The question here is whether the discharge is a bar to the claim •of the plaintiff.
A discharge in bankruptcy releases a bankrupt from all of his provable debts, with certain exceptions not important here. (Bankrupt Act of 1898, 30 U. S. Stat. at Large, 550, chap. 541, § 17.) If the claim of the plaintiff was a provable debt within the meaning of the Bankrupt Act, then the discharge is a bar.
By subdivision i of section 57 of the act it is provided as follows : “ Whenever a creditor, whose claim against a bankrupt estate .is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor’s name, and if he discharge such undertaking in whole or in part he shall be subrogáted to that extent to the rights of the creditor.”
In the Bankrupt Act of 1867 (14 U. S. Stat. at Large, 525, chap. 176, § 19; U. S. R. S. § 5070) there was a similar provision, and under it it was held in Hunk v. Taylor (108 Mass. 508) that the liability of the drawee, upon a bill of exchange accepted and dishonored by him, to an indorser who then pays it, is barred by a discharge of the drawee in bankruptcy proceedings begun after his dishonor of the bill, though before the payment by the indorser. The action in that case was for money paid to the defendant’s use.
In Mace v. Wells (7 How. 272) a similar provision in the Bankrupt Act of 1841 was under consideration, and it was held that the bankrupt was discharged by his certificate from all liability to the surety for money subsequently paid on account of the debt.
These authorities are quite persuasive,’ if not controlling, on the question before us. Ho different rule was, I think, intended to be adopted by the act of 1898, although the wording of the provision •differs in some respects from the prior acts. (See Lowell on the Law of Bankruptcy, 132, 316, 465.)
It must be held, I think, that the claim of the plaintiff was provable under the Bankrupt Act, and that, therefore, the discharge is a bar.
All concurred.
Judgment affirmed, with costs.