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In re SAMPTER.

(Circuit Court of Appeals, Second Circuit.

May 19, 1909.)

No. 239.

Bankruptcy (§ 310*) — Claims—Time foe Proving.

A mortgagee, whose mortgage is foreclosed within a year after the mortgagor’s bankruptcy, is not entitled to prove his claim for a deficiency after the expiration of such year, having the right to prove it in the first instance as a secured claim, under Bankr. Act July 1, 189S, c. 541, §§■ 57a, 57e, 30 Stat. 500 (U. S. Comp. St. 1901, p. 3443).

[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 505; Dee. Dig. § 310.*]

Appeal from the District Court of the United States for the Southern District of New York.

Thomas & Oppenheimer (Reo Oppenheimer, of counsel), for appellant.

James, Schell & Elkus (Abram I. Elkus, of counsel), for appellee.

Before RACOMBE, WARD and NOYES, Circuit Judges.

*939WARD, Circuit Judge.

Tliis is an appeal from an order of tire District Court confirming the report of a referee hi bankruptcy expunging the claim of Abraham Murks against the individual estate of Arnold Sampler. July 29, 190!, the firm, of M. Sampler Son & Co. and the partners composing it, of whom Arnold Sampler was one, were adjudicated bankrupts. Marks, father-in-law of Sampler, was the owner of three mortgages on three lots of laud belonging to Sampler to secure the payment of his three bonds, aggregating' some $36,000. These mortgages were foreclosed, and judgment of foreclosure and sale entered April 4, 1905. Marks was in Rurope from June, 1904, 10 October, 1905, on account of his health; hut the foreclosure of these mortgages was in the hands of competent counsel here.

In the summer of 190? the sale of other premises mortgaged by Sampler to Marks to secure the repayment of advances made to the firm produced a large surplus, which, his individual creditors being paid in full, will go to the firm creditors. In this state of things Marks filed August 16, 190?, more than two years after the adjudication, his claim against the individual estate of Arnold Sampler for the deficiency resulting in the foreclosure actions above mentioned, amounting to $8,86(5.36.

Section 5'm of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 561 (U. S. Comp. St. 1901, p. 3444) provides:

“Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication; or if they are liquidated by litigation and the iiml judgment therein is rendered within thirty days before or after the ex* pira ¡ion of such time, then within sixty days after the rendition of such judgment: Provided, that the rights of infants and insane persons without guardians, without notice of the proceedings, may continue six mouths longer.”

Under sections 5?a and 5?e, of the bankruptcy act, Marks could hove proved his claim, though it was secured, and not liquidated. Besides this, it was liquidated within a year of the adjudication. Service of copies of the complaints in the foreclosure actions on the trustee was not a proof of claim in bankruptcy. There is no ground for holding, assuming the power to do so, that the peremptory requirements of section 5?n should be disregarded.

Order affirmed.

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