Hyperlawhypertext legal database Jersey City Insurance v. Archer 33 N.Y. St. Rep. 552

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Jersey City Insurance v. Archer

33 N.Y. St. Rep. 552 Court N.Y. Decision date 1890-10-21 English

Delivered by Follett, Oh. J.

Contents

Majority

p. 552
The Jersey City Insurance Co., Resp’t, v. Charles S. Archer, App’lt.[1]
(Court of Appeals, Second Division,
Filed October 21, 1890.)

Headnote

Bills and notes—Bankruptcy.
A promissory note given by a debtor after he has been adjudicated a bankrupt, and before he is discharged, for a debt which existed prior to the date of the filing of his petition, is not released by his discharge in bankruptcy.
Appeal from a judgment of the general term of the supreme court of the first judicial department, which affirmed a judgment entered on a decision of the circuit.
February 1, 1877, the defendant was indebted to Cornelia B. Paulmier in the sum of $867.50, for rent, and on that day they entered into a written contract by which she agreed to extend the time of payment for eighteen months, provided the debt was secured by the defendant’s note, due in three months, so endorsed by his wife as to charge her separate estate, and to be secured by like notes given in renewal until the arrival of the time fixed for payment, which was August 1, 1878. Pursuant to this contract the defendant, February 1, 1877, made his note for $867.50 payable at a bank three months after date, to the order of his wife, who endorsed it generally and charged her separate estate with its payment. At maturity this note was taken up by a second one so made and endorsed, .which was taken up by a third note for $899.12, dated August 7, 1877, payable at the Second National Bank of Jersey City, so made and endorsed, which fell due November 10, 1877. On the second day of October, 1877, the third note being outstanding, the defendant filed a voluntary petition in bankruptcy with schedules of indebtedness annexed, wherein fifis note was described, and on the third day of the same -month on his own petition, duly adjudicated a bankrupt. At ' ;y of this note, November 10, 1877, it was taken up note for $915.38, made by the defendant and endorsed payable three months after date at the Second Na-of Jersey City, which fell due February 12, 1878,
p. 553
when the defendant made a fifth note, payable three months after its date at No. 229 Broadway, New York city, to the order of his wife, which "was endorsed by her generally and fell due May 15, 1878.
On the day of the date of this note, February 12, 1878, the defendant amended his schedules of indebtedness, and included therein the last note, but neither it nor any of the previous ones were proved against his estate. May 3, 1882, the defendant "was discharged from all debts and claims provable against his estate which existed on the 2d day of October, 1877. This action was begun May 29, 1882, to recover the amount due on the note of February 12, 1878. Two defenses were interposed: (1) That the discharge in bankruptcy was a bar, and (2) that the plaintiff was not the owner of the note.
Dennis McMahon, for app’lt; Tredwell Cleveland, for resp’t.

A promissory note given by a debtor after he has been adjudicated a bankrupt and before he is discharged, for a debt which existed prior to the date of the filing of his petition, is not released by his discharge in bankruptcy. Stilwell v. Coope, 4 Denio, 225 ; Knapp v. Hoyt, 57 Iowa, 591 ; Lerow v. Wilmarth, 7 Allen, 463 ; Allen & Co. v. Ferguson, 18 Wallace, 1; Hornthal v. McRae, 67 N. C., 21 ; Fraley v. Kelly, id., 78 ; Kirkpatrick v. Tattersall, 13 M. & W., 766; Brix v. Braham, 1 Bing., 281.

Chapter 324 of the Laws of 1882 provides that an oral promise to pay a debt which has been discharged under the bankrupt act is not valid; but that statute has no effect upon the defendant’s liability, for his promise is in writing; besides it was passed after this action was begun. Including this note in the amended schedules of indebtedness had no effect on the rights of the parties, for only debts which existed on the day when the petition was filed are discharged. U. S. R. S., § 5115.

The trial court found as a fact that the defendant became the owner of the note before maturity and for value, and there being evidence to sustain this finding, it is a conclusive answer to the second defense.

No error was committed by the trial court in its rulings upon the admissibility of evidence.

The judgment should" be affirmed, with costs. ■=

All concur, except Haight, J., absent