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Schill v. Larsen

Decided: January 27, 1947.

FREDERICK SCHILL & CO., PROSECUTOR,
v.
OLUF R. LARSEN, RESPONDENT



For the prosecutor, Laurence Semel.

For the respondent, Kaplon, Alenick & Kaplon.

Before Justices Parker and Donges.

Donges

The opinion of the court was delivered by

DONGES, J. This writ of certiorari brings up for review a certain order of the District Court of the Essex County Judicial District setting aside a levy made under execution out of said court and restraining any further steps looking toward the collection of the sum due upon a judgment of that court.

Plaintiff, Frederick Schill & Co., had judgment against the defendant, Oluf R. Larsen, in the Orange District Court (now superseded by the District Court of the Essex County Judicial District) in the sum of $220.92 and costs, on November 18th, 1936. On August 16th, 1938, the defendant Larsen filed a petition in bankruptcy, and on January 19th, 1939, the United States District Court for the District of New Jersey made an order discharging him from bankruptcy.

In the schedule of debts accompanying the petition filed by the defendant appeared the following: "Fred Schill & Co. Irvington, N.J. Judgment $250.00." The question presented for determination on this writ of certiorari is whether or not this was a due scheduling of the debt so as to result in its discharge by virtue of the bankruptcy proceedings. The District Court Judge, in making the order under review, held that it was. The plaintiff-prosecutor contends that it was not.

The proof on behalf of the plaintiff, from its officers, is to the effect that no notice was received by it of the bankruptcy proceeding, and that actual knowledge of such proceeding never came to the corporation. There is in evidence an

affidavit of mailing, made by an employee of the referee in bankruptcy, to the effect that she mailed notices of the first meeting of the creditors of the bankrupt to the list of creditors annexed to said affidavit, amongst whom appears the name of the plaintiff together with the address as given above. Clearly the case resolves itself into one of the sufficiency of the listing of the name and address of the plaintiff in the schedule so as to discharge the debt under 11 U.S.C.A., ยง 35, which provides:

"A discharge in bankruptcy releases a bankrupt from all provable debts except such as * * * have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy."

The holding of the cases is that the correct name of the creditor must be stated, if it is known, together with his correct address, if it is known, and if not known that fact should be stated. Continental Purchasing Co. v. Norelli, 133 N.J.L. 550; affirmed, 135 Id. 93.

It is contended that the listing "Fred Schill & Co." is an incorrect and insufficient listing of the corporate name of "Frederick Schill & Co.," but we deem this to be an unimportant and insignificant deviation from the precise corporate name. The use of the abbreviated "Fred" in place of the full name of ...


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