Hyperlawhypertext legal database Schellenberg v. Mullaney 98 N.Y.S. 432

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Schellenberg v. Mullaney

98 N.Y.S. 432 Court N.Y. App. Div. Decision date 1906-04-20 English

Judges Argued before HIRSCHBERG, P. L, and HOOKER, GAYNOR, RICH, and MILLER, JJ.; All concur.

Delivered by GAYNOR, J.

Contents

Majority

p. 432
(112 App. Div. 384)
SCHELLENBERG et al. v. MULLANEY.
(Supreme Court, Appellate Division, Second Department.
April 20, 1906.)

Headnote

Bankruptcy — Liabilities—Exceptions—Goods Used by Family op Bankrupt.
Under National Bankruptcy Act, § 17, as amended by Act Feb. 5, 1903, c. 487, § 5, 32 Stat 798 [U. S. Comp. St. Supp. 1905, p. 684], excepting, among others, “liabilities * * * for alimony due or to become due, or for maintenance or support of wife and child,” from discharge does not refer to liabilities for goods purchased by the husband or parent, and used by wife or child, and a discharge in bankruptcy discharges a debt incurred for such goods.
Appeal from Trial Term.
Action by Nathan Schellenberg and another against Michael Mullaney. From a judgment for plaintiffs, defendant appeals.
Reversed.
The complaint is for goods sold and delivered to the defendant, and alleges that the goods were clothing which were used by the defendant’s children, and that they were necessaries for the said children, and this was all admitted at the trial.
Argued before HIRSCHBERG, P. L, and HOOKER, GAYNOR, RICH, and MILLER, JJ.
William J. Courtney, for appellant.
Edward Lazansky, for respondents.

The defendant’s subsequent discharge in bankruptcy was held by the justice not to discharge him from this debt. This was error. Section 17 of the national bankruptcy act as amended in 1903 (Act Feb. 5, 1903, c. 4-87, § 5, 82 Stat. 798 [U. S. Comp. St. Supp. 1905, p. 684]) excepts among others, “liabilities * * * for alimony due or to become due, or for maintenance or support of wife and child,” from discharge. This last clause refers only to the involuntary liability under the common law for support of wife and children, and to any one who relieves their want; and under bonds, or the like, given for such support by requirement of courts and magistrates. It does not refer to liabilities for goods purchased by a husband or parent, as in this case, and used by wife or child. This latter fact does not change the character of the debt. The purchaser was free to do what he liked with the goods. They were a matter of free bargain and sale (Collier on Bankruptcy, p. 199).

The judgment should be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event.

All concur.