Thomas F. Nevins, Appellant, v. The Brooklyn Citizen, Respondent,
Second Department,
January 28, 1916.
Pleading — amendment of answer — former bankruptcy of plaintiff.
Where it appears that a plaintiff has no title to the cause of action, which passed to the trustees appointed on his bankruptcy, it is proper for the court to allow the defendant to amend by setting up said defense with counterclaims .for moneys paid on the faith of the plaintiff’s title.
The State courts should not aid a former bankrupt in suing upon a cause of action which of right belonged to his trustees.
*644Appeal by the plaintiff, Thomas F. Kevins, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of June, 1915, granting defendant leave to serve an amended answer setting up as a defense and counterclaim that the title to the cause of action set up in the complaint passed to a trustee in bankruptcy who was appointed, and who qualified on the 13th day of August, 1901, and also an appeal is taken from said order as resettled by an order entered in said clerk’s office on the 28th day of June, 1915.
Michael M. Helfgott \J. Herbert Watson and Thornton J. Theall with him on the brief], for the appellant.
John F. Clarke [Peter P. Smith with him on the brief], for the respondent.
Per Curiam:'
The Special Term, in its discretion, imposed costs before and after notice of trial, with a single term fee as a condition of granting leave to amend the answer so as to set up as a defense that plaintiff had no title to the cause of action by reason of his bankruptcy, and the appointment of a trustee, with two counterclaims for money paid on the faith of plaintiff’s title. Considering the gravity of a bankrupt’s concealment of assets (Bankruptcy Act [30 U. S. Stat. at Large, 554], § 29, subd. b, cl. 1; United States v. Rhodes, 212 Fed. Rep. 513), the State court should not aid a former bankrupt in suing upon a cause of action which of right belonged to the trustee for the benefit of creditors. The fact that in 1901 this bankruptcy was a matter of public news, and was the subject of journalistic comment in defendant’s issues, did not charge defendant’s motion with laches. When the plaintiff’s testimony brought out that, at the time of his bankruptcy, plaintiff owned these certificates, defendant promptly moved to set this up.
The orders appealed from, therefore, are affirmed, with ten dollars costs and disbursements.
Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.
Orders affirmed, with ten dollars costs and disbursements.