Opinion
September Term, 1902.
C.H. Sturges and W.J. Miner, for the appellant.
Levi H. Brown, for the respondent.
This case is now before us upon a reargument ordered. The case as first decided is reported in 66 Appellate Division, 84. In the briefs presented upon that argument it was stated that the Bankruptcy Law of 1898 was a substantial re-enactment of the act of 1867, and in the decision this fact was assumed. Upon a motion for reargument portions of the act of 1898 were called to our attention materially differing from the provisions of the act of 1867, and which upon consideration call for a reversal of the decision which we then made and the affirmance of the decision of the court below.
By section 17 of the act of 1898 (30 U.S. Stat. at Large, 550) it is provided that a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except certain debts specified. By section 63 is defined what are provable debts. Under that section there are five classes of debts which may be proved against a bankrupt and allowed against his estate: (1) A fixed liability, as evidenced by a judgment or an instrument in writing, etc.; (2 and 3) certain sums due as taxable costs; (4) debts founded upon an open account or upon a contract express or implied; (5) judgments upon provable debts obtained "after the filing of the petition and before the consideration of the bankrupt's application for a discharge." In none of these subdivisions is included the claim set forth as a cause of action in the plaintiff's complaint herein. Under section 5067 of the United States Revised Statutes of 1875, which was a part of the Bankruptcy Law of 1867, among the provable debts were included "All demands against the bankrupt for or on account of any goods or chattels wrongfully taken, converted, or withheld by him." Under that act it is clear, as was held, that a cause of action for conversion was released by a discharge in bankruptcy. In the present statute, however, this provision nowhere appears and a demand for a conversion of property as such is no longer a provable debt, and, therefore, no longer released by a discharge in bankruptcy. Subdivision b of section 63 provides for the liquidation of unliquidated claims, but the unliquidated claims there referred to are claims specified in subdivision a of the section as provable debts. They are those provable debts which have not been so far liquidated as to make certain the amount which should be allowed against the bankrupt. This would seem to be indicated by comparison with the former Bankruptcy Law (U.S.R.S. § 5067) above cited, where similar provision is found. It is not necessary here to discuss what would be the situation if in the complaint the plaintiff had chosen to waive the tort. It has not so elected. (See Collier Bank [3d ed.] 399.)
Appellant argues that the exceptions specified in section 17 indicate an intention to make provable other debts than those specified in subdivision a of section 63. To this we disagree. The specification in section 63, subdivision a, of what are provable debts is clear and will not be extended, except by necessary implication. The discharge in bankruptcy constituted no defense to plaintiff's complaint, and the demurrer was properly sustained.
All concurred.
Judgment affirmed, with costs, with usual leave to amend answer upon payment of costs.