Eberspacher v. Boehm — 33 N.Y. St. Rep. 792

Majority

p. 792

Christian Eberspacher, App’lt, v. Leopold Boehm, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

1. Bankruptcy—Discharge op Judgment—Laches.

Delay in applying for a discharge in bankruptcy after adjudication is a subject for the sole consideration of the bankruptcy court, and cannot prevent such discharge from being used to obtain a cancellation of a judgment recovered against the bankrupt.

3. Same.

The statute requires the court to go no further than to ascertain that a discharge has in fact been granted, and that two years have since expired, and when these facts appear it is the duty of the court to cancel and discharge the judgment.

Appeal from an order cancelling and discharging a judgment recovered by the plaintiff against the defendant

B. G. Ohetwood, for app’lt; Jacob B. Hawes, for resp’t.

The judgment which has been ordered to be discharged was recovered on the 15th of August, 1881. In January, 1873, proceedings in bankruptcy were commenced against the defendant in the United States district court for the southern district

p. 793

of New York, and in which he was adjudged a bankrupt in February of that year. The defendant immediately thereafter absconded from the United States, and remained in Europe about eight years. Upon his return the summons and complaint in this action were served upon him, and the judgment afterwards recovered against him by default. He afterwards applied for his discharge as a bankrupt in the proceedings commenced against him in 1873. And that discharge was granted on the 30th of December, 1887. And early in 1890 notice of motion was given, upon proof of this discharge, for the cancellation and discharge of the judgment of record. And in March, 1890, the order to that effect was entered.

The application was resisted, and the appeal has been brought, because of the long delay which followed the adjudication of the defendant as a bankrupt before he applied for his discharge. And that might be found to be a successful objection, if the law remained as it was held to be in McDonald v. Davis, 12 Hun, 95 . But it has not continued in that condition. Chapter 52 of the Laws of 1875 simply empowered the court to discharge the judgment after the expiration of two years from the time of granting the discharge, without making it mandatory that it should be done.

But by § 1268 of the Code of Civil Procedure, which took effect on the 1st of September, 1877, the authority was made mandatory that the court must make the order when the application shall be made after two years have elapsed since the bankrupt was discharged from his debts. These two years had expired before notice of the motion which resulted in the order was served. And that service followed the two years so closely as to exempt the defendant from the accusation of loches in bringing the motion to a hearing. His delay in applying for his discharge in the bankruptcy proceeding was a subject for the sole consideration of the United States district court. And as long as it did not prevent the discharge from being granted, it could not under this statute prevent it from being used to obtain a cancellation of this judgment. For that object the court was required to go no farther than to ascertain that a discharge had in fact been made, and that two years had after that expired before the motion -was noticed for the cancellation of the judgment. Both facts existed in support of tire application, and when they were made to appear it became the duty of the court to cancel and discharge the judgment, as it did by this order. The order should, therefore, be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concur.