Opinion
Argued March 7, 1944
Decided April 13, 1944
Appeal from the Supreme Court, Appellate Division, Second Department, STEINBRINK, J.
Abraham Greenberg for appellant. Aaron Nussbaum for respondent.
The plaintiff's action is upon three promissory notes made by the defendant, all of which were dated on or prior to May 20, 1932. The defendant was adjudicated a bankrupt on February 1, 1933, and was discharged in bankruptcy on May 29, 1935. In his schedule of liabilities filed in the bankruptcy proceeding the defendant listed a debt due the plaintiff of $7,100 which had as its basis the three promissory notes here in suit. On November 4, 1933 — after the defendant's adjudication in bankruptcy but before his discharge — he wrote the plaintiff's husband a letter containing a statement which the plaintiff now asserts removes the bar of his discharge and makes the debt actionable. After reference to the fact that he had been the victim of adverse financial conditions under which it had become difficult for him to meet "urgent needs for existence from month to month", the defendant's letter states that "things are still going from bad to worse * * *." At a later point in the letter the defendant stated — "* * * hereafter I shall first confine myself as soon and as much as possible to pay up your mother's loss and then I still hope for such improvement as to enable me to pay up to the last cent whatever is coming to you and Lottie." (Italics supplied.)
In the present action to recover the amount due upon the three promissory notes, less $326 paid thereon by the defendant since his discharge in bankruptcy, it is the plaintiff's submission that the italicized portion of the defendant's letter quoted above amounted to a new promise by the defendant to pay his debt to her and served in legal effect to revive the debt.
We do not so construe the statement upon which the plaintiff relies. That statement does not lose legal effect because it was made by the defendant before his discharge in bankruptcy. "A promise made at any time after the adjudication * * * is actionable." ( Herrington v. Davitt, 220 N.Y. 162, 167; Meyer v. Price, 250 N.Y. 370, 376, 377; Zavelo v. Reeves, 227 U.S. 625, 629-632; Everett v. Judson, 228 U.S. 474, 478, 479.) It is, however, the form of the statement — its equivocation, its lack of definition in expressing the defendant's intention presently to assume the debt as a personal obligation — which makes it legally ineffectual. We read it as being nothing more than an expression by the defendant of "hope for such improvement as will enable" him to pay his debt to the plaintiff — that "hope" being expressly deferred by the defendant, according to his letter to the plaintiff's husband, until after he has endeavored "as much as possible to pay up your mother's loss." It is not enough that the defendant, by the written statement made after his adjudication in bankruptcy, acknowledged to the plaintiff the existence of an indebtedness; nor has that indebtedness been made presently actionable by the partial payments made by the defendant after his discharge in bankruptcy. ( Herrington v. Davitt, supra, p. 166; Lawrence et al. v. Harrington, 122 N.Y. 408, 413, 414.) A debt discharged in bankruptcy is revived and thereafter becomes actionable only when by an unequivocal statement in writing the debtor expresses his present intention personally to obligate himself to pay the debt. (Personal Property Law, § 31, subd. 5; Lawrence et al. v. Harrington, supra, pp. 414, 415; Herrington v. Davitt, supra, pp. 166, 167; and see Allen Co. v. Ferguson, 85 U.S. 1, 3-5; Gain v. Dunn, 243 App. Div. 849; Ellwell v. Cumner, 136 Mass. 102, 103, 104; Collier on Bankruptcy, 14th ed., pp. 1671-1677.)
The judgments should be reversed and the complaint dismissed, with costs in all courts.
LEHMAN, Ch. J., LOUGHRAN, CONWAY, DESMOND and THACHER, JJ., concur; RIPPEY, J., taking no part.
Judgments reversed, etc.