
    The Columbia Bank, Plaintiff, v. Clarence T. Birkett, Defendant.
    (Supreme Court, New York Trial Term,
    November, 1901.)
    Bankruptcy — A debt intentionally scheduled incorrectly is not discharged.
    Where voluntary bankrupts schedule a debt, represented by their promissory note, in the name of the payee, when they know it is held by a discount bank, and in this manner deprive the bank of notice of their proceeding in bankruptcy, the bank may subsequently recover on the note because the debt was “ not duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt,” within the Bankruptcy Act of 1898, § 17 (3).
    Action by plaintiff against the defendant as surviving member of the firm of Russell & Birkett, which, on February 15, 1899, made and delivered its promissory note to the order of Manhattan Railway Advertising Company, whereby it promised to pay on April 5, 1899, the sum of $750. The note, duly indorsed by payee prior to its maturity, was discounted by plaintiff, which, at the request of the makers before maturity of the note, extended the time of payment until April twelfth.
    On the last-mentioned date, Russell & Birkett filed their petition in bankruptcy in the United States District Court for the ¡Northern District of New York, and on April fifteenth were duly adjudged bankrupts. In the schedules filed with their petition, the bankrupts stated their indebtedness on the note in suit, but scheduled the same as being held by the Manhattan Railway Advertising Company, to whom they caused all notices in the bankruptcy proceeding to be sent. The court found that the bankrupts knew that, at the time of the filing of their petition, the plaintiff was owner of said note; that no notice of the pendency of the bankruptcy proceedings was at the time given to the plaintiff; that the plaintiff had no knowledge or notice of such proceeding until some time after the granting of a discharge to the bankrupts, which was granted September 12, 1899.
    The only defense interposed to the action was the discharge in bankruptcy.
    I. S. Isaacs (Julius J. Drank, of counsel), for plaintiff.
    Thomas Carmody (John Willett, of counsel), for defendant.
   Clarke, J.

This is an action on a promissory note. Defense, a discharge in bankruptcy. Plaintiff seeks to avoid the effect of the discharge upon the ground that, under the provisions of subdivision 3 of section 17 of the Bankruptcy Act of 1898, this debt was not discharged because it was “ not duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt.” The debt was scheduled, but the name of the creditor was not. The name in the schedule was the original payee. The proof established the fact that the bankrupts knew plaintiff wa,s holder of the note in question, and had applied for an extension of time for payment of it. Plaintiff received no notice of the bankruptcy proceedings, and acquired no knowledge thereof until long after the discharge pleaded and proved. “ The defendant had no right to altogether ignore the plaintiff and his demand, unless he intended, as the act proclaims, that the plaintiff should not be bound by the proceeding in which he was so ignored.” Tyrrel v. Hammerstein, 33 Misc. Rep. 505. Judgment directed for plaintiff for. $750, with interest from April 5, 1899, costs, and extra allowance of five per cent.

Judgment for plaintiff, with interest, costs, and extra allowance of five per cent.  