In re Menzin

• Decision Date: 31 May 1916
• Citation: 233 F. 333
• Parties: In re MENZIN.
• Court: U.S. District Court — Southern District of New York

233 F. 333

In re MENZIN.

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

May 31, 1916

Isidor Sachs, of New York City, for the motion.

Harry L. Herzog, of New York City, opposed.

MAYER District Judge.

On November 10, 1914, Abraham Menzin was adjudicated a bankrupt. On February 4, 1915, at the first meeting of creditors, Lewis Frank & Sons filed a proof of debt for $545.75, the agreed price of merchandise obtained from them by the bankrupt upon a statement in writing as to his financial responsibility alleged by Lewis Frank & Sons to be false. This claim was allowed by the referee. On February 4, 1915, one Bloch was elected trustee, and thereafter duly qualified and is still acting as trustee.

Thereafter the bankrupt applied for his discharge, and Lewis Frank &amp Sons filed specifications, which are still pending undetermined before the referee. During December, 1915, Lewis Frank & Sons commenced an action against the bankrupt in the Municipal Court to recover $499.92 damages, because of the fraud and deceit alleged to have been practiced in procuring the sale of the goods on credit. This action is still pending and proceeds upon the theory that the debt is not dischargeable.

The bankrupt now moves to stay the creditor firm from proceeding with its specifications and to expunge all proceedings taken by it thereunder. He also moves to expunge the claim of Lewis Frank & Sons upon the ground that it is unliquidated, not provable and not dischargeable. objecting creditor: First. That the claim was an unliquidated claim. Second. That the claim was not dischargeable in bankruptcy.

It seems to me that the creditor cannot insist on remaining in the bankruptcy proceeding and at the same time pursue his remedy in the state court on the theory that his debt is not dischargeable. A creditor like this one can prove his claim in bankruptcy and oppose the discharge, as in Matter of Reed (D.C.) 26 Am.Bankr.Rep. 286, 191 F. 920; but, if he will not liquidate his claim, and persists in proceeding in another jurisdiction on the theory that the debt is not provable and not dischargeable, then by his own interpretation he is not a party in interest entitled to oppose discharge. Standard Varnish Works v. Haydock, 16 Am.Bankr.Rep. 286, 143 F. 318, 74 C.C.A. 456; In re Heinsfurter (D.C.) 3 Am.Bankr.Rep. 113, 97 F. 198; In re Servis (D.C.) 140 F. 222; In re Hildebrant (D.C.) 120 F. 992; In re Main (D.C.) 30 Am.Bankr.Rep....