(Supreme Court, General Term, Second Department.Headnote
Bankruptcy—Discharge.A claim against a bankrupt is extinguished by his discharge, though the debt is not mentioned in the schedule, where the creditor is a party to the proceeding.
Appeal from special term, Kings county.
This was a suit by Francis A. Biggs and Mary E. Biggs to compel John P. D. Angus to convey certain premises to the plaintiff, Mary E. Biggs, and account for the rents and profits thereof. The property had been conveyed by Francis A. Biggs, in 1869, to his mother, the wife of defendant, with the purpose, as alleged, to have the same conveyed to his wife, the plaintiff. His mother, in 1875, conveyed to a third party, who in turn conveyed to defendant. Plaintiffs, without paying rent, resided in a house of defendant for 11 years. In 1878, F. A. Biggs was discharged in bankruptcy. Defendant was named as a creditor in plaintiff’s schedule. Defendant claimed credit for the rental value of the house occupied by plaintiff before and up to his discharge in bankruptcy. Judgment was entered for defendant for $12,102.65, and plaintiffs appeal.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.Horace Graves, for appellants. Johnson & Lamb, for respondent.
Defendant’s claim for rent of the house on Franklin avenue was against Francis A. Biggs, not against his wife. It was therefore extinguished by the discharge in bankruptcy, so far as it had accrued up to the filing of the petition in bankruptcy. The fact that no indebtedness to Angus for rent was stated in the schedules does not affect the question. Even ¡had Angus not been named as a creditor, in the absence of proof of actual .fraud, his claims would be discharged. As he was a party to the proceeding, no question of fraud can be suggested. It follows that the referee was in error in allowing defendant credit for rent of the Franklin-Avenue house prior to February 1, 1878. The judgment appealed from must be modified accordingly, with costs of appeal to plaintiffs. If the amount to be deducted cannot otherwise be determined, it may be referred back to the referee to fix the amount of deduction.