Berkeley v. Dusenberry

The defendants appeal from an order at Trial Term denying their motion to place this cause upon the day calendar for trial, and staying all proceedings therein. The defendants are the executors of one Sarah J. H. Choate, deceased, and are being sued by plaintiff, a lawyer, for a considerable sum of money claimed to be due for services rendered in and about the business of said estate. It appears that the winding up of the estate is held up during the pendency of the action. The defendantBushby, formerly a partner of plaintiff, has filed a petition in bankruptcy against him. Plaintiff has answered and the issues raised by the petition and answer have been referred to a master, before whom the matter is now pending. No adjudication of bankruptcy has been made, and of course no trustee has been appointed. The plaintiff insists that the pendency of the bankruptcy proceedings against him requires, of necessity, that the action be stayed until either the petition against him be dis*500missed, or a trustee of his property is appointed who can determine whether to prosecute this action or abandon it. The argument is that upon the filing of the petition in bankruptcy the plaintiff became civiliter mortuus, so far as concerns the prosecution or defense, of suits at law. This is undoubtedly true so far as regards actions against him founded upon claims from which a discharge would be a release. (Bankruptcy Law [30 U. S. Stat. at Large, 549], § 11, subd. a.) It is also true of any action against him which might result in diminishing the estate which will come into the hands of his trustee when appointed. But the letter of the Bankruptcy Act does not prohibit the prosecution of actions in behalf of the bankrupt the result of which will be, if successful, to enhance his estate, nor has' the industry of counsel found any authority to the effect that the filing of a petition in bankruptcy alone is a sufficient reason for staying, on the motion of the alleged bankrupt, an action in which he is plaintiff. Nor do we Consider such a case to be within the reason of the law, as it is clearly not within'its letter. There may be cases, of course, in which; for special reasons; the prosecution even of an action in which the alleged bankrupt is plaintiff should be stayed until the appointment of a trustee, but the present case does not present any such reasons. "

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion remitted to Trial Term to set the cause down for trial.

Ingraham, P. J., McL'attghlin, Miller and Dowling, JJ., concurred.

Motion ■ to dismiss appeal denied, with ten dollars costs.. Order reversed, with ten dollars costs and disbursements, and motion remitted to Trial Term to set cause- down for trial. -