In re Seiden, 211

Decision Date10 May 1949
Docket NumberNo. 211,Docket 21271.,211
Citation174 F.2d 586
PartiesIn re SEIDEN.
CourtU.S. Court of Appeals — Second Circuit

Michael Berman, of New York City (Michael Berman and Marcus Katz, both of New York City, on the brief), for bankrupt.

Herman G. Robbins, of Brooklyn, N. Y., for appellee.

Before CHASE, CLARK, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

The appellant filed a voluntary petition in bankruptcy in the District Court for the Eastern District of New York on April 12, 1932 and was duly adjudicated a bankrupt. Among the claims he listed in that proceeding was a judgment which Massee & Company, Inc., had recovered against him in the City Court of the City of New York. On October 31, 1932 that bankruptcy proceeding was closed because the bankrupt did not pay the fees he was by law required to pay and no application for a discharge was made.

On July 24, 1940, the appellant filed a second voluntary proceeding in bankruptcy in the same court and again listed, among others, the judgment above mentioned. The judgment creditor made no appearance in this proceeding. The bankrupt was again adjudicated and, on September 24, 1940, was granted a discharge without the exception of this judgment debt.

On April 29, 1948, the judgment debt was duly assigned to the appellee. The appellee tried unsuccessfully to collect it by supplementary proceedings in the state court where it was held, without prejudice to any application by appellee for relief in the bankruptcy court, that the discharge was a bar.

The appellee on November 12, 1948 moved in the District Court for the Eastern District of New York to have the discharge granted the appellant amended to except this judgment debt. The motion was granted and this appeal followed.

The denial of a discharge from provable debts in a bankruptcy proceeding — and the failure to apply for a discharge when an application was necessary is the equivalent of a denial — bars the discharge of the same debts in a subsequent proceeding. Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193; In re Schwartz, 2 Cir., 89 F.2d 172; Perlman v. 322 West Seventy-Second Street Co., 2 Cir., 127 F. 2d 716; Chopnick v. Tokatyan, 2 Cir., 128 F.2d 521. However Bluthenthal v. Jones, 208 U.S. 64, 28 S.Ct. 192, 52 L.Ed. 390, 13 L.R.A.,N.S., 629 shows that, where the subsequent bankruptcy proceeding is not in the same court, such debts may be effectively discharged, in the absence of objection made, at least to the extent that a discharge of them is not subject to collateral attack.

It should be kept in mind that it is not sought to set aside the discharge and so Sec. 15 of the Act, as amended, 11 U.S.C.A. § 33, is...

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12 cases
  • In re Gross, 9929.
    • United States
    • U.S. District Court — District of Maryland
    • May 24, 1950
    ...and much later decision of the Court of Appeals for the Second Circuit which was subsequent to the Ginsberg decision, that is, In re Seiden, 174 F.2d 586, the Court followed its opinion in the Perlman case and in affirming the District Court's order excepting a judgment debt from discharge,......
  • In re Mendoza
    • United States
    • U.S. Bankruptcy Court — Southern District of California
    • February 10, 1982
    ...Law, 45 Am.Bankr.L.J. 1, 9, 50, 52 (1971); Freshman v. Atkins, 269 U.S. 121, 123, 46 S.Ct. 41, 70 L.Ed. 193 (1925); In re Seiden, 174 F.2d 586 (2d Cir. 1949); In re Zimmer, 63 F.Supp. 488, 491 (S.Cal.1945).3 Thus, under the Act, if you failed to get a discharge in one case you could obtain ......
  • In re Boissonnault
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 6, 1969
    ...not a limiting provision. Rash v. Metzger, 3 Cir., 1929, 31 F.2d 424; see In re Pope, N.D.Ohio, 1951, 101 F.Supp. 503. Cf. In re Seiden, 2 Cir., 1949, 174 F.2d 586. Contra, In re Aasand, D.N.D., 1925, 7 F.2d 135.4 A discharge is a judgment, and by equitable principles there should be variou......
  • In re Napoli, Bankruptcy No. 182-12068-21.
    • United States
    • U.S. Bankruptcy Court — Eastern District of New York
    • September 13, 1983
    ...Cir.1937); In re Bimberg, 121 F. 942 (S.D.N.Y.1903); In re Boissonnault, 415 F.2d 1371, 1373 (1st Cir.1969) and cases cited there; In re Seiden, 174 F.2d 586 (2d Cir.1969 Chase, J.); In re Lansley, 15 F.2d 471 (2d Cir.1926); In re Applegate, 235 F. 271 (S.D.N.Y.1916) (Hand, L.); In re Seats......
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