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IN RE GREEN

DISTRICT COURT, W.D. NEW YORK


May 17, 1934

In re GREEN

The opinion of the court was delivered by: KNIGHT

KNIGHT, District Judge.

Bankrupt moves for an order restraining a judgment creditor from taking further steps to enforce payment of his judgment and particularly to enjoin said judgment creditor from securing an order directing the bankrupt to show cause why he should not be punished for contempt for failure to appear for examination in supplementary proceedings in response to an order of the county court, Erie county, New York.

Bankrupt asserts that, subsequent to his failure to appear and after the service of an order to show cause why he should not be punished for contempt for such failure, he made payments on the judgment at the office of the attorney for the judgment creditor and was told to forget about the show cause order, which was not adjourned to any later date. Thereafter and on March 30, 1934, he filed a voluntary petition in bankruptcy. It is contended by the bankrupt that the creditor waived the contempt by accepting payments on the judgment and by failing to exercise his right to a contempt proceeding at the time it was available.

 A fine levied for contempt for failure to obey an order of the court is not dischargeable in bankruptcy. In re Thomashefsky (C.C.A.) 51 F.2d 1040; In re Spagat (D.C.) 4 F. Supp. 926.

 The order directing the debtor to appear for examination in supplementary proceedings was a valid order when made. Likewise, the order directing the debtor to show cause why he should not be punished for contempt for failure to appear was valid when made. The bankrupt asserts that the creditor waived the contempt and abandoned the proceeding. This is a defense to be urged in the state court. This court has no power to interfere.

 Bankrupt's affidavit fails to show that the debt as scheduled is dischargeable. The motion is therefore denied, not only as to restraint of contempt proceedings, but also as to restraint of any other proceedings for enforcement of the judgment against bankrupt.

19340517

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