77 N.Y.S. 1028 | N.Y. App. Div. | 1902
This case is now before us upon a reargument ordered'. The case, as first decided, is reported in 66 App. Div. 84, 72 N. Y. Supp. 466. In the briefs presented upon that argument, it was stated that the bankruptcy law of 1898 was a substantial re-enactment of the act of 1867, and in the decision this fact was assumed. Upon a motion for reargument, portions of the act of 1898 were called to our attention materially differing from the provisions of the act of 1867, and which, upon consideration, call for a reversal of the decision which we then made, and the affirmance of the decision of the court below. By-section 17 of the act of 1898 it is provided that a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except certain debts specified. By section 63 is defined what are provable debts. Under that section there are five classes of debts which may be proved against a bankrupt and allowed against his estate: (1) A fixed liability, as evidenced by a judgment or an instrument in writing,, etc. (2, 3) Certain sums due as taxable costs. (4) Debts founded upon an open account, or upon a contract express or implied. (5) Judgments upon provable debts obtained after the filing of the petition, and before the consideration of the bankrupt’s application for a discharge. In none of these subdivisions is included the claim set forth as a copse of action in the plaintiff’s complaint herein. , Under section 5067, Rev. St. U. S. 1875; which was a part of the bankruptcy law of 1867, among the provable debts were included “all demands against the bankrupt for or on account of any goods or chattels wrongfully taken, converted, or withheld by him.” Under that act it is clear, as was held, that a cause of action for conversion was released by a discharge in bankruptcy. In the present statute, however, this provision nowhere appears, and a demand for a conversion of property as such is no longer a provable debt, and therefore no longer released by a discharge in bankruptcy. Subdivision “b,” § 63, provides for the liquidation of unliquidated claims, but the unliquidated claims there referred to are claims specified in subdivision “a” of the section as prov
Appellant argues that the exceptions specified in section 17 indicate an intention to make provable other debts than those specified in subdivision *a” of section 63. To this we disagree. The specification in section 63,'subd. a, of what are provable debts is clear, and will not be extended, except by necessary implication. The discharge in bankruptcy constituted no defense to plaintiff’s complaint, and the demurrer was properly sustained.
Judgment affirmed, with costs, with usual leave to amend upon payment of costs. All concur.
