
    LARSEN v. HYMAN.
    (Supreme Court, Appellate Term.
    December 8, 1910.)
    Bankruptcy (§ 414)—Discharge in Bankruptcy—Claims Enforceable— Burden of Proof.
    A creditor of one discharged in bankruptcy has, to avoid the discharge, the burden of proving his claim, which was provable, was within Bankr. Act July 1, 1898, c. 541, § 17, subd. 3, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), providing that a debt is not discharged which was not duly scheduled in time for proof and allowance.
    [Ed. Note.—Eor other cases, see Bankruptcy, Dec. Dig. § 414.*]
    Appeal from Municipal Court, Borough of Manhattan; Seventh District.
    Action by Andrew Larsen against Joseph Hyman. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before GUY, PLATZEK, and GAVEGAN, JJ.
    Isaac Hyman, for appellant.
    Bernard Cowen, for respondent.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date. & Bep’r Indexes
    
   PLATZEK, J.

That the defendant purchased goods from the plaintiff, for which he incurred an indebtedness of $100, which remains unpaid, is unquestioned on this appeal.

A discharge in bankruptcy and the knowledge of plaintiff of pending bankruptcy proceedings, is pleaded as a defense. The certificate of the discharge of the defendant in bankruptcy is in evidence. The schedules in these proceedings were not produced by either party on the trial. No proof whatever was adduced by either party as to whether the plaintiff’s debt was or was not set out and included in 'the schedules. That the plaintiff’s demand was provable under the bankruptcy act is not disputed. The question is: Upon whom rested the burden of proof to show that the claim of the plaintiff was not included in the schedules, and that his demand came within the exceptions provided for in section 17, subd. 3; of the bankruptcy act of 1898 (Act July 1, 1898, c. -541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]), which provides that a debt is not discharged which was not duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt?

The certificate of discharge, in itself, is evidence of the jurisdiction of the court, the regularity of the proceedings, and of the fact that the order discharging the bankrupt was duly made; and it must therefore be presumed that the debt was scheduled and that the creditor had notice of the bankruptcy proceedings. In order to defeat the discharge pleaded and proved by the defendant, the burden was imposed upon the plaintiff to establish by sufficient evidence that his claim was one of those excepted from the effect of the discharge. New York Inst. for Instruction of Deaf & Dumb v. Crockett, 117 App. Div. 269-273, 102 N. Y. Supp. 412; Matter of Peterson, 137 App. Div. 435-439, 121 N. Y. Supp. 738. The plaintiff’s contention that his claim was excepted, pursuant to the provisions of the bankruptcy act, because it was not scheduled, in consequence of which he had neither notice nor knowledge of the bankruptcy proceedings, is not sustained by the burden of proof cast upon him, and the judgment appealed from must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  