Majority
p. 58Wheeler v. Emmeluth. (Supreme Court, General Term, Second Department. December 10,1890.) Argued before Barnard, P. J., and Pratt, J.
Headnote
1. Insolve \-c y—Dischakge —Validity.The list of creditors annexed to the petition, of an insolvent for discharge from his debts, pursuant to Code Civil Proc. § 2162, requiring “ a full and, true account of all his creditors, ” contained the name of a creditor recently deceased, of whose estate an administrator had been appointed; but it did not appear that this was known to the petitioner. Held, that the error did not make void the discharge granted thereon.
2. Same—Application to Vacate Judgments—Appeal.
In the application to the supreme court by an insolvent, after discharge from his debts, to have certain judgments against him canceled of record, required, by Code Civil Proc. N. V. § 2182, to be made to the court in which the judgment was rendered, the judgments were described as entered in the supreme court, and this was not denied by the opposing affidavit. Held, that an order granting the application could'not be reversed on appeal upon a statement in appellant’s brief that one of the judgments was entered in a justice’s court, and, on being docketed, became a judgment of the county court.
Appeal from special term,' Westchester county.
Application by William Emmeltith, an insolvent debtor discharged from his debts, to cancel and discharge of record two judgments recovered against him by Thomas Wheeler. The application was opposed by Obed Wheeler, administrator of said Thomas Wheeler, who had deceased before the proceedings in insolvency. From an order directing the cancellation and discharge of the judgments, the administrator appealed. For opinion on a similar motion to vacate a judgment, see 7 N. Y. Supp. 807 .
Code Civil Proc. N. Y. § 2162, relating to the discharge of an insolvent from his debts, provides that “the petitioner must annex to his petition a schedule containing (1) a full and true account of all his creditors,” etc. Section 2182 provides that “at any time after one year has elapsed since the recording of the discharge and the petition,” etc., “the petitioner may apply, upon proof of his discharge, to the court in which a judgment shall have been rendered against him, for an order directing the judgment to be canceled and discharged of record. ”
Michael J. Scanlan, for appellant. Gabriel Levy, (Jacob Levy, of counsel,) for respondent.
The principal defect urged against the insolvent discharge is that in the list of creditors appeared the name of Thomas Wheeler, whereas, properly, the name of Obed Wheeler, as administrator of Thomas, should have been entered. There is no reason shown to suppose that at the time of making the application the petitioner was aware of the death of his creditor, which was then recent. Not every omission or error will make insolvent proceedings void. If honestly prosecuted, the inclination and duty of the court will be to disregard errors that have not caused injury. The brief of the appellant states that one of the judgments canceled by the special term order was entered in a justice’s court, and that, being docketed in the county clerk’s
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office, it became a judgment of the county court, and that the motion for discharge should be addressed to that tribunal. But the petition avers the judgment was entered in the supreme court on February 24,1876. The opposing affidavit does not deny that such a judgment was entered, and the order appealed from directs the cancellation of such judgment. If it be true that a judgment was entered on the 23d of February, 1876, in a justice’s court, it is not aimed at or affected by this proceeding. It may well be that, to cancel that judgment, resort should be had to the county court. Order appealed from affirmed, without costs.