Walker v. Muir — 127 A.D. 163

Majority

p. 163

Gertrude Walker, Respondent, v. William Muir, Appellant.

Second Department,

June 18, 1908.

Headnote

Bankruptcy — discharge of judgment — section 1268, Code Civil Procedure, construed. ,

Where a judgment in a cause of action ex contractu entered by default has been opened and prior to a second judgment by default the defendant has been discharged in bankruptcy, in which proceeding the plaintiff’s claim was scheduled and the plaintiff given notice, the bankrupt is entitled to a discharge of the judgment under section 1268 of the Code of Civil Procedure.

Under said section of the Code of Civil Procedure, as amended by chapter 602 of the Laws-of 1899, a bankrupt is entitled to a discharge of judgments against him if it appear that he has been discharged from the debt upon which the judgment was recovered. Under the Code the judgment is regarded asan old debt in a new form.

As the language of section 1268 of the Code of Civil Procedure is mandatory a bankrupt is entitled to a discharge from a judgment, although he did not obtain a stay from the Bankruptcy Court or move to open a default taken subsequent to his discharge.

Appeal by the - defendant, William Muir, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of April, 1908.

Herbert Peake, for the appellant.

William Armstrong, for the respondent.

This is an appeal by the defendant from an order denying his motion to discharge of record a judgment against him under the provisions of section 1268 of the Code of Civil Procedure. Plaintiff sued the defendant in the City Court of the city of Hew York in the year 1902 upon a cause of action ex contractu which would ordinarily be discharged by a discharge in bankruptcy. (Nat. Bankr. Act of 1898, § 17.)^[2] Judgment was entered upon defendant’s default on April 19, 1902, and the default was opened on May 19, 1902, the plaintiff being required to serve her complaint within ten

p. 164

days thereafter, and the defendant to answer in three days. The defendant suffered another, default, however, but plaintiff did not enter her judgment against the defendant until December 27,1906, On September 29j 1903, defendant filed his petition in bankruptcy and on January 15, 1904, he was by order of the Federal court discharged from all debts and claims provable against his estate which existed on the day of the filing of his petition, excepting debts not dischargeable in bankruptcy. The defendant proved by the affidavit read in support of his motion that the plaintiff’s claim was included in the defendant’s schedules in bankruptcy; this fact is not disputed, nor does the plaintiff allege that she was without notice of the bankruptcy proceedings.

Section 1268 of the Code of Civil Procedure relating to discharge of judgments against bankrupts, provided, prior to 1899,; that if it appeared upon the debtor’s application for discharge of the judgment that he lias been discharged from the payment of that judgment, an order must be made accordingly ;^[2] b.ut by chapter 602 of the Laws of that year, the. section was amended in substantial particulars ; part of it is made tó read as follows: “ If it appears upon the hearing that he has been discharged from the payment of that judgment, or the debt upofi which such judgment was- recovered, an order must be made directing said judgment be cancelled and discharged of record.” The amendment was evidently made to cover just such a case as this and due effect must be given to the-added language in the section by holding that the application to discharge of record the judgment against the defendant should have been granted; for it cannot be disputed that the debt, upon which the action, resulting in that judgment, Was founded, was due and payable at the time of the filing of the schedules in bankruptcy and was dischargeable as such. In addition to the plain language of the Códe it may not be amiss to call attention to the fact that- the judgment is, “for the purpose of the Code,. * * * regarded as the old debt in a néw form.” (West Philadelphia Bank v. Gerry, 106 N. Y. 467 , 472.)

It matters not that the defendant did not, obtain a stay from the Bankruptcy Court ( West Philadelphia Bank v. Gerry, supra), or

* See Laws of 1876, chap. 448, § 1268.— [Rep,

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that he did not move to open his second default and plead the discharge before judgment was entered; for either motion might have been denied for any one of several reasons and the language' of section 1268 of the Code is not only plain, but mandatory.

The order must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.

Woobwabd, Jenks, Gaynob and Millee, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.

Footnotes

* See 30 U. S. Stat. at Large, 550, § 17, as arod. by 32 id. 798, § 5.— [Rep.

Cases cited

West Philadelphia Bank v. Gerry 106 N. Y. 467 N.Y. 1887-10-04 at 472 p. 164