Majority
p. 329Sender Feldmark, Respondent, v. Isaac H. Weinstein et al., Appellants. (Supreme Court, Appellate Term, November, 1904.)
Headnote
Discharge in bankruptcy — When it does not authorize the cancellation of a judgment of a creditor whose residence is stated in the schedule as “ unknown.”• Upon a motion made under section 1268 of the Code of Civil Procedure for the cancellation of a judgment on the ground that the judgment debtor had been discharged in bankruptcy the fact that the judgment creditor’s address was given in the bankruptcy schedules as “ unknown ” will not of itself render the discharge ineffective as to the judgment and require the denial of the motion; but where the judgment creditor further shows that although made aware of the address of the judgment creditor’s attorney by the summons and complaint and the judgment record the bankrupt made no effort to ascertain the judgment creditor’s address from such attorney or from any other source and that no notice of the bankruptcy proceedings was sent to the judgment creditor directly or in care of such attorney, the court is justified in finding that the judgment had not been duly scheduled within the meaning of the Bankruptcy Act and in denying the motion.
Appeal by defendants from an order of the City Court of the city of New York, opening plaintiff’s default on a motion, vacating the order entered on said default, and denying defendants’ motion to cancel and discharge the judgment on the ground of defendants’ discharge in bankruptcy.
Shapiro & Shapiro, for appellants.
Julius Cohen (William Barnes, of counsel), for respondent.
The power of the court below to open plaintiff’s default being beyond question, the only question to be considered is whether defendants’ motion to cancel the judgment on the ground of their discharge in bankruptcy was properly denied. The plaintiff claimed that the judg
p. 330
ment should not be cancelled because his address was given in the bankruptcy schedules as “ unknown.” This does not per se invalidate the discharge. But the plaintiff further showed that although made aware of the address of plaintiff’s attorney by the summons and complaint and the judgment record, the defendants failed to inquire of him as to the address of his client; that they made no effort whatever to ascertain said address; that presumably they scheduled said address as “ unknown ” for the purpose of evading their duty to give notice, and that in fact no notice of the bankruptcy proceedings was sent to the plaintiff directly or in care of said attorney. Upon all the facts presented, the court was justified in finding that the debt had not been duly scheduled within the meaning of the Bankruptcy Act, and that for such reason defendants’ motion should not prevail. While it is true that the provisions of section 1268 of the Code of Civil Procedure are mandatory in requiring the court to discharge a judgment when proper proof of the discharge of the debt is presented, yet the provisions of the Bankruptcy Act must be shown to have been complied with, and where it is shown that the debt has not been duly scheduled, the court may refuse to cancel the judgment, for the Bankruptcy Act expressly excepts from the operation of a discharge such debts as have not been scheduled in time for proof and allowance with thé name of the creditor, etc. See Sutherland v. Lasher, 41 Misc. Rep. 249 , affd., 87 App. Div. 633 ; Tyrrel v. Hammerstein, 33 Misc. Rep. 505 ; Columbia Bank v. Birkett, 174 N. Y. 112 .
So far as there is any conflict of fact in the affidavits used on the motion, the court below has presumably passed upon the same and there is nothing in the record to justify this court in adopting a different conclusion.
The order should be affirmed, with ten dollars costs and disbursements.
Bischoff and Fitzgerald, JJ., concur.
Order affirmed, -with costs.
Cases cited
- Sutherland v. Lasher 41 Misc. Rep. 249 p. 330
- Columbia Bank v. Birkett 174 N. Y. 112 p. 330