DISTRICT COURT, E.D. NEW YORK
October 18, 1943
In re 74 KNOWLES STREET CORPORATION
The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
The trustee seeks to review the order of the referee made on August 30, 1943, which granted leave to the Delf Associates, Inc., to file its written proof of debt with the referee nunc pro tunc as of February 10, 1942.
On February 10, 1942, the bankrupt was duly adjudicated as such. The first meeting of creditors was held on June 3, 1942.
Title 11 U.S.C.A. § 93, sub. n,
in very definite and unmistakable language, permits a creditor to file a proof of claim against the bankrupt's estate within six months after the first date set for the first meeting of creditors.
The court is not vested with discretion to extend the time beyond the six months' period. See In re Paragon Novelty Bag Co., Inc., City of New York v. Jersawit, 2 Cir., 135 F.2d 210; In re Ebeling, 7 Cir., 123 F.2d 520; In re Kornblum, D.C., 22 F.Supp. 245; In re Boggess, D.C., 21 F.Supp. 905; In re Bender Body Co., D.C., 47 F.Supp. 867; In re Schildhaus, D.C., 4 F.Supp. 696; In re Baker's Baking Co., D.C., 285 F. 652; In re Brill, D.C., 52 F.2d 636.
There can be no doubt that this was the intention of the Congress. It so expressed it in the statute and in the Senate Report No. 1916 on H.R. 8046, 75th Congress, 3rd Sess. (1938) 5, (3 Collier on Bankruptcy, 14th Edition, p. 116, footnote 35).
An enlightening statement is contained in 3 Collier on Bankruptcy, 14th Edition, pages 321-322, concerning this question: "The Act of 1938, however, with its manifold amendments to Section 57n, added as they were with full knowledge of the existing divergences of judicial views, constitutes a distinct reinforcement of the reasoning in favor of strict and 'equity-proof' application of the statutory limitation. In allowing for extension of the time to file governmental tax claims, and in allowing the belated filing of proofs in cases where there is a surplus after all the other creditors have been paid in full, the Act unmistakably implies that under no circumstances other than those specifically referred to in the statute may the court admit a claim to untimely proof, but that it is under a duty to disallow it, with no power to substitute equitable considerations for the manifest intent of Congress."
Prior to the Amendment of 1938 there were some decisions to the effect that the court was vested with equitable powers to extend the time and there were other decisions to the contrary. The six months' provision is in the nature of a statute of limitations. The court is bound by the statute limiting the time to six months; it cannot enlarge the time. This has been the uniform holding in this district.
The referee erred in permitting the proof of claim to be filed. Even if the law permitted the filing of a proof of claim after the six months' period (which it did not) the granting of further time in this case would not be justifiable. Both upon the law and facts it was an error to permit the proof of claim to be filed.
The order of the referee will be reversed.
Settle order on notice.