FLANNIGAN v. BELLANTONE

In this action in which the plaintiff seeks damages as a result of an automobile accident in 1935, the defendant filed a special defense alleging that he received on July 1, 1937, a discharge in bankruptcy; that the schedules listed the present action as an unliquidated debt. The case had never gone to judgment. The plaintiff demurred to this special defense. Held: Section 17 of the Bankruptcy Act provides that a discharge in bankruptcy shall release a bankrupt from all his provable debts. A claim based upon a personal tort which has not been reduced to judgment is not provable and hence is not dischargeable. Demurrer sustained.

O'SULLIVAN, J.

On July 1st, 1937, the defendant, Joseph Bellantone, received a discharge in bankruptcy. He pleads this as a special defense to an action brought by the plaintiff for the recovery of damages sustained in an automobile accident which occurred in 1935. This action has never gone to judgment and Bellantone listed it in his bankruptcy schedules simply as an unliquidated debt.

The plaintiff's demurrer which is directed to this special defense must be sustained. Section 17 of the Bankruptcy Act provides that a discharge in bankruptcy shall release a bankrupt from of all his provable debts, with certain exceptions having no present application. However, a claim based upon a personal tort which has not been reduced to judgment is not provable and hence is not dischargeable. Remington on Bankruptcy, Vol. 7, Sec. 3529.