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IN RE SCHROETER

DISTRICT COURT, E.D. NEW YORK


November 22, 1943

In re SCHROETER

The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Motion to lift a stay granted by this court, to permit the plaintiff in a negligence suit against the bankrupt which was pending in a State court when the voluntary petition was filed, to the extent of allowing the cause to proceed to trial so that the claim may be liquidated in amount, and filed in this proceeding.

That an unliquidated claim cannot be allowed appears from Section 63, sub. d, of the Bankruptcy Act, 11 U.S.C.A. ยง 103, sub. d.

 The question then is merely one of convenience as to the method of liquidation.

 The moving affidavit states that the trial in the State court will be reached within the next two or three weeks, and no reason is suggested in the opposing affidavit for believing that liquidation of the claim in that trial would not be convenient or expeditious.

 If the Referee in Bankruptcy were to attempt to pass upon the merits of the claim and the amount thereof if the creditor is successfrul, he would be required to go through the same formalities as will attend the trial in the State court. That being so, no reason is perceived for declaring that liquidation of the claim would be more expeditious or satisfactory in this proceeding than in the court wherein the cause is now pending. Therefore the motion will be granted.

 Settle order.

19431122

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