Opinion
June, 1906.
M. Strassman, for appellant.
Leon Laski, for respondent.
The action was upon an account stated and for money loaned; the defense was a discharge in bankruptcy and at the trial, in support thereof, the defendant introduced in evidence a certified copy of the order of discharge and so much of the schedule annexed to his petition for adjudication in bankruptcy as relates to his liabilities. The claim of the plaintiff was scheduled after that of another creditor, Shiby and Gaffney, in manner following:
========================================================================================= | Residence | | Nature and | NAMES | (if unknown | When and where | consideration | Amount. OF CREDITORS. | that fact must | contracted. | of debt, etc. | | be stated). | | | ----------------------|-----------------|-------------------|-------------------|-------- Shiby Gaffney ..... | Care New York | | | | Clipper, N.Y.C. | New York, 1902 .. | Actors salary ... | $50.00 James Haack wife .. | " | " | " | 300.00 ========================================================================================= The plaintiff maintains that he is exempted from the operative force of the discharge because his claim was not properly scheduled nor had he notice or knowledge of the bankruptcy proceedings and that, therefore, a judgment in favor of the defendant should not have been rendered.The Bankruptcy Law, section 7, subdivision 8 (30 U.S. Stat. at Large, 548), requires the bankrupt to prepare, verify, and file a schedule of his property containing "a list of his creditors, showing their residences, if known, if unknown, that fact to be stated." Those details are essential to insure the delivery to creditors of the notices which under the law they should receive. Section 17 (30 U.S. Stat. at Large, 550, 551) provides that "a discharge in bankruptcy shall release a bankrupt from all 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." These features of the present act, when contrasted with the provisions of preceding acts, indicate a legislative intent that greater strictness shall prevail in notifying the creditor of the various proceedings in bankruptcy. Columbia Bank v. Birkett, 174 N.Y. 112.
If, through the bankrupt's default, no notice reaches the creditor and no actual knowledge on his part is shown, the debt is not discharged. Westheimer v. Howard, 47 Misc. 145.
The schedule of debts which the bankrupt files furnishes the basis for the notices to be sent and "thus the bankrupt appears to be made responsible for the correctness of the list of his creditors." Columbia Bank v. Birkett, supra.
Every requirement of the act and of the rule of the United States Supreme Court relating thereto was ignored by the defendant in scheduling plaintiff's debt. The plaintiff as a creditor was incorrectly listed as "James Haack and wife." There was no such concern and the defendant had no such creditor. The resort to ditto marks in attempting to indicate the plaintiff's residence is in violation of both the letter and the spirit of the act, as well as the rule, and, moreover, has never been sanctioned by authority. The rule is known as General Order Number Five, and directs that all schedules shall be printed or written out plainly without abbreviations.
But even if these ditto marks be invested with the broadest significance as a duplication of the statement of the residence of Shiby and Gaffney they are grossly insufficient. Then the residence of the plaintiff would be stated as "% New York Clipper, N.Y.C." By no analysis of that combination of words and letters could the conclusion be reached that a residence is indicated. The most liberal construction would locate the plaintiff's residence "in care of New York Clipper, New York City." With that information who could assert where the plaintiff resided?
Save in a statement of the amount of the debt, the schedules further violate the provisions against the adoption of abbreviations.
The plaintiff's debt not having been duly scheduled, the defendant's discharge did not affect it unless the plaintiff had notice or actual knowledge of the proceeding.
The plaintiff in positive terms asserted that he had no notice or knowledge thereof until this trial; no attempt was made to contradict him except through vague statements of the defendant which do not rise to the dignity of contradiction.
Under the evidence the plaintiff was entitled to a judgment; that rendered in favor of the defendant must, therefore, be reversed and a new trial ordered. Costs are awarded to the appellant to abide event.
GILDERSLEEVE and McCALL, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.