McKee v. Preble — 154 A.D. 156

Majority

p. 156

Joseph McKee, Appellant, v. Walter E. Preble and Luetta A. Preble, Respondents.

First Department,

December 20, 1912.

Headnote

Bankruptcy — practice — scheduling debts — residence of judgment creditor — when order canceling judgment should be vacated — practice — leave to issue execution.

A debt is not “duly scheduled” within the -meaning of the Bankruptcy Act where the office or business address of a judgment creditor is given instead of his residence.

If the debtor does not know the-creditor’s residence it is his duty to make reasonable effort to discover it, and where it was properly given in the city directory which the debtor could have consulted, and he used the creditor’s business address instead, an order canceling the judgment should be vacated.

While a judgment creditor seeking to vacate an order canceling the judgment should have appealed from the order of cancellation or have asked leave to reargue the motion instead of moving to vacate the order, the latter motion may he granted where it appears that it was made before the same justice who granted the order of cancellation and that he entertained and decided the motion on its merits. Under the circumstances the appellate court will assume that the objection to practice was-not taken at Special Term, or that the justice treated the motion as one for reargument.

Where such order canceling a judgment has been vacated the judgment creditor should be given leave to apply to the Special Term for leave to issue execution.

Appeal by the plaintiff, Joseph McKee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on

p. 157

the 29th day of October, 1912, denying the plaintiff’s motion to vacate an order canceling a judgment.

Gerald Hull Gray, for the appellant.

G. Murray Hulbert, for the respondents.

Plaintiff recovered a judgment against defendants on May 25, 1900. On April 2, 1904, defendants filed a petition in bankruptcy, the schedules giving plaintiff’s residence as 212 Ninth avenue in the city of New York, which was his place of business. The plaintiff’s residence up to May 1, 1904, was Ridgewood, N. J., and after that date was at 238 West Twenty-first street in New York city. The city directories for 1904 and 1905 correctly gave his residence as above stated. Plaintiff swears positively that he never received notice of defendants’ bankruptcy The rule appears to be well established that a debt is not “ duly scheduled ” within the meaning of the Bankruptcy Act where the office or business address is given instead of the residence. (Collier Bankruptcy [8th ed.], 181; Weidenfeld v. Tillinghast, 54 Misc. Rep. 90 ; Haack v. Theise, 51 id. 3; Vaughn v. Irwin, 49 id. 611; Sutherland v. Lasher, 41 id. 249; affd., 87 App. Div. 633 ; 30 U. S. Stat. at Large, 548, § 7, subd. 8; Id. 550, § 17, subd. 3, as amd. by 32 id. 798, § 5.) If the debtor did not know the creditor’s residence it was his duty to make a reasonable effort to ascertain it, and in the present case he could easily have found it by consulting the city directory. We are, therefore, of the opinion that the order canceling the judgment should have been vacated.

It is objected that the plaintiff should have appealed from the order of cancellation or asked leave .to reargue the motion instead of moving to vacate the order. Ordinarily this would be true, but it appears from the order appealed from that the justice, who was the same one that granted the order of cancellation, entertained the order to Vacate and decided it on the merits. From this circumstance we assume either that the present objection was not taken at Special Term or that the justice treated the motion as in effect a motion for a reargument.

p. 158

So far as concerns the motion for leave to issue execution the plaintiff should have leave to renew that at Special Term. In consequence of the cancellation of the judgment,- the motion for leave to issue execution has not been heard upon the merits at Special Term.

The order should be reversed, with ten dollars costs and disbursements, and motion granted to the extent of vacating the order for the cancellation of the judgment, with leave to plaintiff to renew his motion for leave to issue execution.

IngraHam, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion., with leave, bo renew motion for leave to issue execution.