#### Francis A. Biggs and Mary E. Biggs, Pl’ffs and App’lts, *v.*John P. D. Angus, Def't and Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Bankruptcy pbocbedings—-How fob claim fob bent is dischabged by.

Where the defendant had collected rents of property which the court decreed belonged to Mary E. Biggs, the plaintiff, which rents he was ordered to account for before a referee, and he sought to set off against the rents he had collected from the property the rents due to him for property of his leased to her husband, and occupied by her and her husband during the same period of time, and it appeared that on February 6, 1878, the husband filed his petition in bankruptcy proceedings, and his discharge was afterwards granted by the court. *Held,*that the debt due the defendant for rent of his property prior to the filing of the lessee’s petition in bankruptcy was discharged by the proceedings in bankruptcy, and that the referee was in error in allowing a credit to the defendant, in his said accounting, for the rent of his house occupied by plaintiff’s firm to the filing of the petition in bankruptcy.

*2.*Same—What debts abb discharged by—Effect of omission of the DEBT FBOM THE SCHEDULE.

A discharge of a debtor under proceedings in bankruptcy discharges him from all debts, whether mentioned in his schedules or not, up to the time of the filing of his petition therein; and, even if the creditor is not named in the schedules, his claim would be discharged if there is no proof of actual fraud.

This action was brought to compel the defendant to convey to the plaintiff, Mary E. Biggs, certain lands and premises in Flatbush, Kings county, and to account for the rents and profits which he had derived therefrom. It was *606tried before Mr. Justice Brown without a jury in January, 1886.

The property in question had been conveyed, in 1869, by the plaintiff, Francis A. Biggs, who then owned it, to his mother, Charlotte Angus, who was the wife of the defendant, for the purpose of having the same conveyed to his wife, the plaintiff, Mary E. Biggs.

The title remained in Mrs. Angus until May 11,1875, when she conveyed the property to Richard M. De Mill, who on October, 31, 1875, conveyed it to the defendant, and the title remained in him until the commencement of this action.. He also collected the rents of the property, until this action was begun, claiming to own it in fee. On March 8, 1886, a decree was entered in this action, declaring the title to said property to be in the plaintiff, Mary E. Biggs, and an accounting was ordered, to be taken by a referee, of the receipts and disbursements. The defendant sought to set off, against the rents so collected by him, the rent of premises on Franklin avenue, which belonged to him, and had been occupied by the plaintiff during the time he had collected the rents of the property, the subject of this action.

On February 6, 1878, Francis A. Biggs petitioned to be discharged in bankruptcy, and on October 4, 1878, his discharge was granted.

The property on Franklin avenue was occupied by plaintiff, from April 1, 1872, until July, 1876, and from September 1877, to May 1, 1885. The referee credited the defendant with the rent during all the time of said occupancy; for the rent which had accrued before the filing of the petition in bankruptcy, as well as that which accrued afterwards.

It appeared that Schedule A, of the bankruptcy proceedings, sworn to by the petitioner, Francis A. Biggs, contained the following item:

“John P. D. Angus, Brooklyn, N. Y., $3,000, money loaned to petitioner.”

No mention is made in the schedule of rent due to Angus. The question raised by this appeal is, whether bankruptcy proceedings discharged Biggs from the payment of the rent due by him, to Angus, up to the time of filing his petition.

*Horace Graves,*for app’lts; *Johnson & Lamb*(A. *L. Lamb,*of counsel), for resp’

Pratt, J.

Defendant’s claim for rent of the house on Franklin avenue, was against Francis A. Biggs, not against his wife. It was, therefore, extinguished by the discharge in bankruptcy, so far as it had accrued up to the filing of the petition in bankruptcy. The fact that no indebtedness to Angus, for rent, was stated in the schedule, does not affect the question. Even had Angus not been named as a creditor, in the absence of proof of actual fraud, his claims would be discharged. As he was a party to the proceeding, no question of fraud can be suggested.

It follows that the referee was in error in allowing defendant credit for rent of the Franklin avenue house, prior to February 1, 1878.

*607The judgment appealed from must be modified, accordingly, with costs of appeal to plaintiff. If the amount to be deducted cannot otherwise be determined, it may be referred back to the referee to fix the amount of deduction.

All concur.