| NY | Oct 4, 1887
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *470 It appears by the motion papers that in May, 1875, the petitioner was a member of the firm of Gerry, Tilton Colwell, and, as such, indebted to the plaintiff upon a promissory note of that date, made by the firm for the sum of $2,569.73. It was not paid, and on the 10th of January, 1883, the plaintiff recovered judgment in the Supreme Court of this State against him and the other members of the firm. It also appears that on the 3d of August, 1878, he, then being a resident of the State of Massachusetts, filed in the proper court a petition that he be adjudged a bankrupt; that he was so adjudged, and, thereafter, so conformed to the requirements of the statutes of the United States relating to bankruptcy; that on the 30th day of March, 1883, an order was made by the District Court of the United States, sitting in bankruptcy, for the district of Massachusetts, that he be "forever discharged from all debts and claims which," under those statutes, were provable against his estate and which existed on the 3d day of August, 1878, subject to certain exceptions, of which the debt in question was not one. In September, 1886, he applied to the proper court for an order discharging the above judgment of record as against him. The motion was opposed by the judgment creditor, but granted by the court. The plaintiff appeals. We find no ground on which the appeal can succeed. The Code of Civil Procedure (§ 1268), provides that, at any time after two years have elapsed since a bankrupt was discharged from his debts, pursuant to the act of congress relating to bankruptcy, he may, upon proof of his discharge, apply to the court in which a judgment was rendered against him, for an order directing the judgment to be canceled and discharged of record; and "if it appears that he has been discharge, from the payment of that judgment, an order must be made accordingly." The appellant contends:
First. That "the debtor was guilty of laches in not obtaining a stay from the United States court of the proceedings in the *471
action in the State court." If he could have done so, he was not bound to take that course, and his omission cannot deprive him of the benefit of the statute above quoted. We do not see that the doctrine of laches applies, but if it does it was for the Supreme Court to deal with it, and its decision cannot be reviewed.Medbury v. Swan (
Second. That "a discharge in bankruptcy of a single member of a copartnership does not act as a discharge of a copartnership debt if there are assets of the firm unless the firm is declared bankrupt." It appears as a fact in the case that before the petition in bankruptcy was filed the firm had been dissolved, and a general assignment without preferences made by it of all its property to assignees who qualified and took charge of and distributed its property. Not only then had the firm ceased to exist as between the parties, but there were no partnership assets, nor any power on its part to acquire any. It is true that the assignment did not release the obligation of the contract, but that was effected by bankruptcy if the debt was one provable against the bankrupt. (Bankrupt Act of 1867, §§ 32, 34; U.S. Bankrupt Act, §§ 5115, 5119.) That it was so provable requires no argument, for it is not one of the expected classes; and, save those, all debts and liabilities, claims and demands, present or future, certain or contingent, to which the bankrupt was subject, or which were due and payable from him at the date of the adjudication, might be proved against his estate. (Bankrupt Act, § 19; R.S. of U.S., § 5067.) Moreover, if there were partnership effects, the interest of the bankrupt member vested in his assignee (Bankrupt Act, § 14; U.S.R.S., §§ 5044, 5046), as an asset. (In re Beal, 2 Nat. Bank. Reg. 578.)
The precise point was also decided by BLATCHFORD, J., In theMatter of Frear (1 Nat. Bank. Reg. 660" court="S.D.N.Y." date_filed="1868-06-22" href="https://app.midpage.ai/document/in-re-frear-8631356?utm_source=webapp" opinion_id="8631356">1 Nat. Bank. Reg. 660; S.C., 35 How. Pr. 249" court="None" date_filed="1868-07-01" href="https://app.midpage.ai/document/in-re-frear-6226616?utm_source=webapp" opinion_id="6226616">35 How. Pr. 249), who was a member of a then late copartnership, but *472 who filed his individual petition for a discharge from all his debts, it was held that the debt in question although a partnership debt, was provable whether there were assets of the copartnership or not. This view of the law is also consistent with the declaration in section 33 of the Bankrupt Act (U.S.R.S., § 5118), that no discharge should release or affect any person liable for the same debt with the bankrupt, either as partner or otherwise. Nothing else can be inferred, than that, within the intent of the act, one partner might be entitled to be discharged for or in respect of partnership debts.
Third. That the moving party is not within the Code (§ 1268,supra), because "the judgment was not included in his schedules in bankruptcy." It appears, however, that the debt which constituted the cause of action was set forth, and the amount and date, etc., of the note upon which the judgment was recovered, and the name and address of the plaintiff herein, as a creditor by virtue of it. The cases already decided in this court (Clark
v. Rowling,
All concur.
Order affirmed. *473