Mandell v. Levy

Leventritt, J. The plaintiffs sued for goods sold and delivered. The defense pleaded was a discharge in bankruptcy. In support of the defense a properly certified copy [148] of the order of confirmation of a composition in bankruptcy was offered and admitted in evidence. This order of confirmation recited that “ the consideration and money required by law to be deposited ” had been deposited' “ as ordered.” This order acted as a discharge and can be pleaded in bar. Bankruptcy Law, § 12, subd. d; Collier Bank. (5th ed.) 159; Glover Grocery Co. v. Dorne, 8 Am. Bank. Rep. 702; Matter of Becket, 3 Fed. Cas. No. 1210. The order of confirmation was sufficiently proved by the certified copy under the seal of the clerk of the court. Code Civ. Pro., § 943; Bankruptcy Law, § 21, subd. f. It is claimed that the debt was revived by a new promise. But this was not proven. The letters of the defendants or either, of them taken singly or together do not show as required by the statute the note or memorandum subscribed by the party to be charged promising or agreeing to pay the debt discharged by the .composition agreement. Pers. Prop. Law (Laws of 1897, chap. 417), § 21, subd. 5. While an oral promise, if definite and unambiguous, is sufficient under the Bankruptcy Law (Collier Bank. [5th ed.] 217; Smith v. Stanchfield, 7 Am. Bank. Rep. 498), the written promise required by local statute controls. Id. Ho oral promise is shown in the case, and no written promise is deducible from the letters. The plaintiffs assert in their communications that such a promise has been made, but the defendants’ letters are barren of anything beyond the admission of a moral obligation. The simple acknowledgment that a debt is still existing which is sufficient to remove the bar of the Statute of Limitations is insufficient to revive a ■ debt discharged in bankruptcy. Scheper v. Briggs, 28 App. Div. 115, 118. Under the provisions of the Personal Property Law cited there must be a clear expression of intention on the part of the debtor to bind himself to the payment of the debt (Id.; Lawrence v. Harrington, 122 N. Y. 408), and while the promise need not be expressed in so many words, it must be one which is necessarily implied from the words of the writing. The defendants’ letters do not meet these tests. They show a .recognition of a moral duty, but any [149] construction of the writings beyond that is forced and unwarranted. The judgment should be affirmed, with costs. Scott and Geeenbaum, JJ., concur. Judgment affirmed, with costs.