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IN RE MCCARTHY

DISTRICT COURT, E.D. NEW YORK


May 15, 1942

In re McCARTHY

The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is a motion for an order reviewing the order made by the Referee in bankruptcy.

A creditor sought an order from the Referee adjudicating that the obligation owing to the Personal Finance Company of New York by the bankrupt was not dischargeable. The Referee properly decided that such question should be determined by the State Court.

 This Court had occasion to state in Anna Francine and Frank Bonacchini v. Armon Babayan, 45 F.Supp. 321, decided January 2, 1942: "A discharge in bankruptcy can only affect such debts that are dischargeable under the Bankruptcy Law [11 U.S.C.A. ยง 1 et seq.] Whether or not a claim is dischargeable in bankruptcy after the order of discharge has been made is not to be determined by the bankruptcy Court but by the Court in which the judgment was obtained, therefore the Referee could not and did not determine the question whether or not the debts were dischargeable in bankruptcy."

 Whether or not an indebtedness is dischargeable should be determined by the Court in which an action was brought to recover a judgment based upon the indebtedness.

 The petition to review is denied.

19420515

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