In re Ludeke

• Decision Date: 29 June 1909
• Citation: 171 F. 292
• Parties: In re LUDEKE.
• Court: U.S. District Court — Eastern District of New York

171 F. 292

In re LUDEKE.

United States District Court, E.D. New York.

June 29, 1909

Francis K. Pendleton, Corp. Counsel.

Eugene Conran, for bankrupt.

CHATFIELD District Judge.

The bankrupt is in the employment of the city of New York receiving a monthly salary as attendance officer of the board of education. His petition was filed in this court on the 10th day of February, 1909, and he was adjudicated upon that day. Upon the 30th day of April of this year, upon a hearing properly noticed, the bankrupt was discharged of his provable debts. A certified copy of the order of discharge has been served upon the comptroller of the city of New York. One John T. Gallagher obtained a judgment for $2,111.11, which was docketed in the clerk's office of the county of Kings upon the 17th day of May, 1898, and upon the 27th day of January, 1909, under section 1391, Code Civ. Proc. N.Y., an execution was served upon the comptroller, pursuant to an order of the Supreme Court of the state of New York directing the city of New York to pay to the sheriff of Kings county the sum of 10 per cent. of the bankrupt's salary for each week as the bankrupt's salary might accrue, until the said execution should be satisfied. In pursuance thereof the comptroller of the city of New York has applied 10 per cent. of the bankrupt's salary for the purposes of this execution, and up to the present time has refused to pay over to the bankrupt the total amount of his salary accruing since the date of his discharge. Upon this motion, served upon the comptroller, the judgment creditor, and the trustee in bankruptcy, the application is now made to this court to dissolve the lien of the said execution and garnishee order.

The bankrupt was relieved by his discharge in bankruptcy from all provable debts. The judgment in question was apparently such a debt, and the lien against his salary, it is believed would not continue with respect to any sum not already earned, and to which lien had not specifically attached under the levy of the execution, at the date of his adjudication in bankruptcy, inasmuch as the discharge was granted. Under Act July 1, 1898, c. 541, Sec. 67f, 30 Stat. 565 (U.S. Comp. St. 1901, p. 3450), any amount of money so levied upon within four months prior to the filing of the petition passed to the trustee as a part of the estate of the bankrupt, unless it had been paid over and had passed to the hands of an innocent par...