Stern v. Gerber

This action was brought to recover for services rendered, of the alleged value of $99.77, on account of which plaintiff was paid $6.81 by defendant’s receiver in bankruptcy. The complaint alleges that, prior to his discharge in bankruptcy, defendant agreed in writing to pay plaintiff the entire amount due as soon as he should procure his discharge in bankruptcy. The defense was a general denial; also a release.

During the bankruptcy proceedings, defendant wrote plaintiff letters promising to pay off the balance due “gradually out of my earnings,” “when I resume earning money.” Plaintiff filed his claim, in bankruptcy and received his dividend on account of it. Defendant was thereafter discharged in bankruptcy.

Assuming that conditional promises, pending bankruptcy proceedings, to pay out of future earnings after the discharge, or when the bankrupt is able to pay, are enforceable upon proof that defendant has earned the money, or that he is able to pay, no such proof was furnished. Stern v. Nussbaum, 5 Daly, 382, 383; Lawrence v. Harrington, 122 N. Y. 408, 414, 25 N. E. 406; Kiernan v. Fox, 43 App. Div. 58, 60, 59 N. Y. Supp. 330; Gruenberg v. Treanor, 40 Misc. Rep. 232, 81 N. Y. Supp. 675; German Exchange Bank v. Schnitzer, 72 Misc. Rep. 362, 130 N. Y. Supp. 223.

Proof of parol declarations that defendant was in business, said he was doing the best he could, expected to get another store, and was doing well, is not sufficient proof that he had earned enough to pay, or was able to pay, plaintiff.

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