Matter of Weber , 212 N.Y. 290 ( 1914 )

The motion to cancel and discharge the judgment of record was made pursuant to section 1268 of the Code of Civil Procedure on the ground of the appellant's discharge in bankruptcy of his provable debts. It is earnestly argued that a debt due to a state is not released by a discharge in bankruptcy for the reason that general words of a statute will not derogate from the rights and privileges of the sovereignty. We do not now decide whether that rule of construction applies to a Federal statute in its bearing on the rights of states. Nor do we decide whether the express exception of claims of a state for taxes excludes others from the exception under the rule expressio unius est exclusio alterius, because we are of the opinion that an obligation on a forfeited bail bond is within the meaning of section 57j of the Bankruptcy Act of July 1, 1898, c. 541, 30 Stat. 560 (U.S. Comp. St. 1901, p. 344), which provides inter alia that a debt owing to a state "as a penalty or forfeiture shall not be allowed except for the pecuniary loss sustained by the act, transaction or proceeding out of which the penalty or forfeiture arose." Upon that point we agree with the reasoning of Judge HAND in Matter of Caponigri (193 Fed. Rep. 291). Certainly, the bail bond was not given to indemnify the state against pecuniary loss but to insure the appearance of the accused, and, although the obligation arising upon it may not be within the strict letter of the provision above quoted, it is plainly within its spirit and purpose. It could not have been intended by the Bankruptcy Act that a bankrupt should be discharged of the payment of a debt which was not allowable. Hence, the appellant was not entitled under section 150 of the Debtor and Creditor Law to have the judgment recovered upon that debt discharged of record.

The order should be affirmed, with costs.

WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, CHASE, HOGAN and CARDOZO, JJ., concur.

Order affirmed.