Price v. Derbyshire Coffee Co. — 128 A.D. 472

Majority

p. 472

Anderson Price, as Trustee of Johnson Coffee Company, a Bankrupt, Appellant, v. Derbyshire Coffee Company, Respondent.

First Department,

November 6, 1908.

Headnote

Bankruptcy — preference — defense of setoff — pleading — demurrer — new matter.

Under subdivision c of section 60 of the Bankruptcy Act, allowing a preferred creditor to offset against the amount recoverable from him unpaid credits which he has afterwards given to the debtor without further security for property which becomes part of the debtor’s estate, such further credits extended to one who thereafter becomes bankrupt may he set off only against antecedent preferential payments, and not against such as may have been made after the extension of the new credits.

New matter alleged in an answer will he tested on demurrer as if alleged as a complete defense of all the causes of action contained in the complaint, unless it distinctly refers to the cause of action which it is intended to answer as required by section 507 of the Code of Civil Procedure.

Appeal by the plaintiff, Anderson Price, as trustee, etc., from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of' Mew York on the 20th day of May, 1908, upon the decision of the court rendered after a trial at the Mew York Special Term, with notice, of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 20th day of May, 1908, overruling a demurrer and directing the entry of the said interlocutory judgment.

Charles L. Craig, for the appellant.

Merritt E. Haviland, for the respondent.

The plaintiff appeals from an order overruling his demurrer to’, certain setoffs and counterclaims embraced in the answer, and from the interlocutory judgment entered upon such order.

The action is by a trustee in bankruptcy, who seeks to recover, under section -60 of the Bankruptcy Act (30 U. S. Stat. at Large, 562, as amd. by 32 id. 799, 800, § 13), certain preferential pay- ■ meñts made by the bankrupt within four months of its bankruptcy.

p. 473

The defendant counterclaims for and seeks to set off, as against any sum'which the plaintiff may be entitled to recover, two sums representing credits extended to the bankrupt after some, but not all, of the preferential payments had been made. Subdivision a of section 60 of the Bankruptcy Law defines preferential payments and subdivision b authorizes the trustee to recover the amount of such preferences from any person who may have been so preferred. Subdivision c provides as follows: “ Tf á creditor has been preferred, and afterwards in good faith gives the debtor further credit without security of any kind for property which becomes a part of the debtor’s estates, the amount of such new credit remaining unpaid at the time of the adjudication in bankruptcy may be set off against the amount which would otherwise be recoverable from him.”

The complaint stated thirteen causes of action, each being predicated upon the payment by the bankrupt of a promissory note made in favor of the defendant. These payments are alleged to have been made at various dates between January 2 and April 20, 1906. The set-offs claimed in the answer are for merchandise alleged to have been sold by defendant to the bankrupt upon credit on February 20 and March 9, 1906. We think that the fair and obvious construction of subdivision c of section 60 of the Bankruptcy Act is that further credits extended to a person who thereafter becomes a bankrupt, may be set off only against antecedent preferential payments, and not against such as may have been made after the extension of the new 'credits. It follows in the present case that the set-offs claimed by the defendants are inapplicable to some of the causes of action set forth in the complaint. Section 507 of the Code of Civil Procedure provides that unless a defense or counterclaim “ is interposed as an answer to the entire complaint it must distinctly refer to the cause of action which it is intended to answer,” and where no such statement is made the plaintiff has a right to assume and the court must assume that the new matter alleged is pleaded as a complete defense, and if demurred to must be tested as stich. . (Thompson v. Halbert, 109 N. Y. 329 .) 27o such statement is made respecting the counterclaims or set-offs pleaded by the defendant, and they must, therefore be tested as to their sufficiency to all the causes of action con

p. 474

tained in the complaint. So tested they are insufficient because upon the face of tlie pleading they constitute no defense to the causes of action, predicated upon preferential payments ináde after the new credits were extended.

It follows that the order ánd judgment appealed from must be reversed, and the demurrer sustained, with Costs in this court and the court below, with léáve to the defendánt, upon payméiit óf such costs, to amend its answer within twenty days.

Patterson, P. J., Ingraham, Laughlin. and Clarke, JJ., concurred.

Judgment reversed, with costs, and demurrer sustainéd, with costs, with leave to defendant to amend on payment of costs.

Cases cited

Thompson v. Halbert 109 N. Y. 329 N.Y. 1888-04-24 p. 473