The opinion of the court was delivered by: CAMPBELL
This is a motion brought on by an order to show cause why an order should not be made vacating and setting aside the discharge of the bankrupt and permitting Samuel Rapoport, a creditor, to file specifications.
The bankrupt was in a prior proceeding granted a discharge on June 4, 1930.
On February 19, 1935 the bankrupt filed a voluntary petition in bankruptcy.
Samuel Rapoport was one of the creditors scheduled.
A first meeting was held by the Referee on notice to creditors at his office on March 7, 1935.
There were no assets in the bankrupt's estate.
On February 18, 1936, there was filed by the bankrupt a petition for discharge.
On June 17, 1936 copies of the petition for discharge and order of June 8, 1936 thereon with notice of hearing thereon, on July 24, 1936, was, as appears by the certificate of the Clerk of this Court, sent to all creditors and on June 11, 1936, notice of such hearing was published in Queens Evening News.
On July 24, 1936, the matter was regularly called and no one appeared in opposition whereupon the discharge of the bankrupt was granted.
This motion appears to be based on three alleged grounds:
(1) That the creditor did not have notice of the application for discharge.
(2) That the bankrupt had been discharged in a prior proceeding within six years prior to the filing of the application for discharge in this proceeding.
(3) That the discharge was obtained through the fraud of the bankrupt, without alleging the nature of the fraud.
As to the first ground the proof of publication and the certificate of the Clerk is evidence of giving of notice, which has not been overcome by any ...