Jelliffe v. Thaw

• Decision Date: 04 December 1933
• Docket Number: No. 2.,2.
• Citation: 67 F.2d 880
• Parties: JELLIFFE v. THAW.
• Court: U.S. Court of Appeals — Second Circuit

67 F.2d 880 (1933)

JELLIFFE v. THAW.

No. 2.

Circuit Court of Appeals, Second Circuit.

December 4, 1933.

William A. Hyman, of New York City (Adolph Bangser and William A. Hyman, both of New York City, of counsel), for plaintiff-appellant.

Bartholomew B. Coyne, of New York City (Alfred J. Bedard, of New York City, of counsel), for defendant-appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff brought this action to recover $10,000 for services rendered by him to the defendant "as a physician, alienist, neurologist, and medical adviser" from the year 1907 to August, 1913. At the latter date, the defendant, after having been acquitted of a charge of murder on the ground of insanity and sentenced to Matteawan State Hospital, escaped from the hospital.

The services involved were performed in connection with the second trial of Thaw for murder, and preparation therefor and afterwards while he was confined in Matteawan. At the close of the evidence in the present action, the trial court directed a verdict for the defendant on the ground that a discharge in bankruptcy, based upon a voluntary petition filed on August 7, 1908, freed him from any obligation to pay for the portion of the services performed before August 7, 1908, and on the ground that the claim for subsequent services was barred by the New York statute of limitations. It was testified at the trial that the reasonable value of all the alleged services was $10,000 and the value of such part of the services as were rendered after August 7, was $2,500.

The plaintiff contends that the discharge in bankruptcy did not bar plaintiff's claim for services rendered before the filing of the petition. His argument is that the discharge was rendered in a proceeding in which the court had not obtained jurisdiction. The petition which was filed in the Western District of Pennsylvania alleged:

"That he has had his principal place of business (or has resided or has had his domicile) for the greater portion of six months next immediately preceding the filing of this Petition at Pittsburgh within said Judicial District."

The pleading was drawn under chapter 2, section 2 of the Bankruptcy Act (11 USCA § 11) which grants power to the District Court to "adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months, or the greater portion thereof. * * *"

Though the petition with allegations in the alternative be defective as a pleading, the court was not without jurisdiction. Any one of the alternatives, whether of residence, domicile, or place of business, was a sufficient basis for invoking an adjudication in bankruptcy. The petitioner was not obliged to allege or establish all or any two of the grounds of jurisdiction. Such decisions as Bank of Port Jefferson v. Darling, 102 App. Div. 431, 92 N. Y. S. 483, Arnot v. Wright, 55 Hun, 561, 9 N. Y. S. 15, Collins v. Beebe, 54 Hun, 318, 7 N. Y. S. 442, and In re Peter J. Laskaris, 1 A. B. R. 480, dealt with attacks made in an original proceeding upon its regularity because the pleading was in the alternative. In none of them was it attempted, as here, collaterally to impeach a decree based on alternative pleading. It is well settled that a decree cannot be attacked collaterally unless it appears upon the face of the proceeding that jurisdiction was lacking. McCormick v. Sullivant, 10 Wheat. 192, 6 L. Ed. 300; New River Collieries Co. v. Snider (C. C. A.) 286 F. 667; In re New York Tunnel Co. (C. C. A.) 166 F. 284. The claim that the court that entertained the Thaw petition in bankruptcy lacked jurisdiction resembles the contention often made that a petition alleging preferential payments generally and without specification gives the court no jurisdiction, and is equally unsound. The pleadings in each case are objectionable for much the same reason, but there is in neither case a failure of jurisdiction. Bradley v. Huntington (C. C. A.) 277 F. 948; In re Fuller (C. C. A.) 15 F.(2d) 294; In re S. W. Straus & Co., 67 F.(2d) 605, decided by this court November 6, 1933.

The plaintiff also relies on estoppel to set up the discharge as a defense. He testified that after the petition in bankruptcy was filed Thaw said that he was not attempting to eliminate plaintiff's claim, but was only seeking to avoid certain creditors whom he did not wish to pay, and that he advised plaintiff not to file any proof of claim because he would settle in full for all services when he had gained his freedom. The plaintiff testified that, in view of this assurance, he did not prove his claim, and consequently received no dividend from the bankruptcy estate.

According to plaintiff's evidence, defendant broke his promise by not paying for the services rendered prior to the filing of the petition in bankruptcy, but he made no false representation that would give rise to an estoppel, for the plaintiff knew all the facts, including the bankruptcy proceeding itself, and might have proved his claim had he chosen to do so. There was no false representation as to an existing fact relied on by plaintiff to his detriment, and hence no estoppel. Shapley v. Abbott, 42 N. Y. 443, 1 Am. Rep. 548.

The oral promise to pay the indebtedness that had been discharged in bankruptcy did not in itself revive the indebtedness for services rendered prior thereto. A promise to pay a debt discharged in bankruptcy is void under section 31, subd. 5, of the New York Personal Property Law (Consol. Laws N. Y. c. 41), unless it be in writing. Here there was no writing. Hence the discharge barred plaintiff's claim so far as it related to services rendered prior to August 7, 1908, when the petition in bankruptcy was filed.

The question remains whether the New York six-year statute of limitations barred recovery for services rendered after the filing of the petition in bankruptcy. The plaintiff's testimony was that the services rendered while the defendant was in Matteawan were to be paid for after he had gained his freedom. He was adjudged...