Opinion
No. 110.
December 19, 1932.
Appeal from the District Court of the United States for the Eastern District of New York.
In the matter of John G. Sullivan, bankrupt. From an order denying a petition filed on behalf of Moses Kohn, a creditor of bankrupt, praying that an order extending the bankrupt's time to file his application for discharge be vacated, petitioner appeals.
Reversed.
The bankrupt was adjudicated such on July 18, 1930. Seventeen months later, on December 17, 1931, he presented a petition to the District Court for an extension of the time to file a petition for his discharge, and was given an extension until January 17, 1932, by an ex parte order dated December 18, 1931. On December 21, 1931, the application for a discharge was filed, and on May 6, 1932, the discharge was granted.
The petition for the extension set forth that the bankrupt was for the following reasons unavoidably prevented from making an application for a discharge during the twelve-month period succeeding his adjudication:
During the latter part of 1930 he became seriously ill, and had to go to Pawling, N.Y., to a sanatorium for several months; upon his return he continued to be ill and required medical treatment for nearly a year, and incurred medical expenses and bills for doctors, and was financially unable to pay the cost incidental to an application for his discharge.
Prior to the date of the hearing of the application for the discharge, the appellant, Moses Kohn, a creditor, who had filed a proof of claim, obtained an order directing the bankrupt to show cause why the order extending the time to file the application for a discharge should not be vacated. Upon the return of this order to show cause, the deposition of the bankrupt was taken, and in addition his affidavit and the affidavits of three employees of the Brooklyn Edison Company, for which he worked, were submitted in support of the extension which had been granted. From these proofs it appeared that in August and September, 1930, the bankrupt was suffering from stomach ulcers, complicated or caused by infected tonsils. In October, 1930, the tonsils were taken out at the Pawling Sanatorium of the New York Edison Company, where he remained during the greater part of October and November, paying $1 a day. In December, 1930, he was able to work at times, but between August, 1930, and December, 1931, he was compelled to be absent from employment for a day or two at a time owing to ill health. During this period he was constantly consulting physicians and was greatly worried for fear his illness was cancer of the stomach. His mother was ill in Mobile, Ala., and this fact racked his mind. In December, 1930, he went to visit her for a few days at that place, but at his brother's expense. For the first six months of 1930, the bankrupt was receiving $24 per week salary from the Brooklyn Edison Company. In the summer of 1930 this salary was raised to $26 per week, and in November, 1930, to $30. From this salary he had to pay for his room, clothes, physicians' bills, food, and other expenses. His attorney sent him an estimate of $50 as the expense of obtaining his discharge, and notified him many times within the year succeeding his adjudication of the importance of making his application, but he could not borrow or save the necessary money. His attorney finally obtained the extension and made the application without receiving compensation.
Upon the foregoing record, the motion to vacate the order extending the bankrupt's time to apply for his discharge was denied on the ground that the bankrupt was "unavoidably prevented" from filing an application within "the next twelve months subsequent to being adjudged a bankrupt."
Karelsen Karelsen, of New York City (Morton G. Rosenberg, of New York City, of counsel), for appellant Moses Kohn.
Matthew B. Price, of New York City (Guernsey Price and Matthew B. Price, both of New York City, of counsel), for appellee John G. Sullivan.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
This bankrupt was in poor health, alarmed about his physical condition, disturbed by his mother's illness, and earning only $30 per week, from which he had to pay doctors' and apothecary's bills as well as living expenses. His reasons for obtaining an extension of time to apply for a discharge excite sympathy, but do not furnish a legal excuse. The words of section 14a of the Bankruptcy Act (11 USCA § 32(a) covering an extension of time to apply for a discharge limit extensions to cases where the bankrupt is "unavoidably prevented" from filing his application "within the next twelve months subsequent to being adjudged a bankrupt." We have held that inability to pay for filing an application for a discharge is not ordinarily the kind of "unavoidable prevention" recognized by the statute. In re Lansley (C.C.A.) 15 F.2d 471; In re MacLauchlan (C.C.A.) 9 F.2d 534. Sickness may be, and at times is, an excuse. In re La Rosa (C.C.A.) 15 F.2d 373. But here, in spite of the bankrupt's illness, he drew his regular wages, had no one dependent upon him, and was able to work most of the time after he left the sanatorium in November, 1930. If the statute is not to be frittered away, this bankrupt cannot be classed among those "unavoidably prevented" from applying for a discharge. It must be remembered that bankrupts are in general without means other than their current earnings. This bankrupt was in as good financial condition as many, if not most, bankrupts. He was able to do his work, to earn his salary, to secure funds to enable him to visit his mother in Mobile, and in the end to apply for the extension and to file a petition for a discharge though apparently in no better financial condition than in the last six months of the year after his adjudication. In such circumstances we cannot hold that he was subjected to that sort of "compelling outside force, precluding a man by hypothesis honest and diligent from filing his petition," which amounts to unavoidable prevention. In re MacLauchlan (C.C.A.) 9 F.2d 534. Though he had slender resources and suffered from apprehension and illness, he was able to work most of the time and to earn a moderate salary. He cannot be said to have been "unavoidably prevented" from filing his petition for a discharge within the twelve months. As we said in Re MacLauchlan, 9 F.2d 534, 535, the drafting and filing of a petition for a discharge is a "simple, short, and inexpensive affair." Indeed, we can hardly see why it was not as easy to prepare and file it in time as to prepare and file the papers for the extension.
In our opinion, the bankrupt was not justified in applying for an extension, and we are constrained to hold that it should not have been granted.
Order reversed.