Wheeler v. Emmeluth — 34 N.Y. St. Rep. 775

Majority

p. 775

Thomas Wheeler, Pl’ff, v. William Emmeluth, Resp’t. Obed Wheeler, Adm’r, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

1. Insolvency—Error in naming creditor.

On an application to cancel a judgment .after discharge in insolvency,

p. 776

objection was made that in the list of creditors in" the insolvency proceedings appears the. name of the original judgment-creditor, who had died, and not that of his administrator. It did not appear that the debtor knew of such death. Held, not an error which would make the insolvent proceedings void.

2. Same—Discharge op judgment.

It was claimed that one of the judgments discharged was recovered in justice’s court and filed with the county clerk. The petition stated that a judgment was entered in the supreme court on that day, and the opposing affidavit did not deny that such a judgment was entered, and this was the judgment directed to be cancelled. Held, that the order was not aimed at and did not affect a judgment recovered in justice’s court.

Appeal from order cancelling and discharging of record two judgments in favor of plaintiff against defendant.

The order was made on the ground of defendant’s discharge in insolvency, the petition for which was presented August 3, 1885.

Michael J. Scanlan, for app’lt; Gabriel Levy (Jacob Levy, of counsel), for resp’t.

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.

Mot 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 cancelled by the special term order was entered in a justice’s court, and that being docketed in the county clerk’s 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 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.

Barnard, P. J., concurs; Dtkman, J., not sitting.