Mulock v. Byrne — 36 N.Y. St. Rep. 551

Majority

p. 551

Maria Mulock, App’lt, v. James A. Byrne, Resp’t.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

Bankruptcy—Discharge of judgment—Fraud.

Whatever fraud may have existed out of which the consideration of a promissory note arose, hy suing on the note simply the fraud was waived and only the debt remained, and this debt having become merged in judgment is within the operative force of a bankruptcy discharge.

Appeal from order staying the enforcement of a judgment because of a bankruptcy discharge.

A. 0. Fransioli, for app’lt ;• S. J. Oroohs, for resp’t

It is claimed upon the part of the appellant, who is the assignee of the judgment owned by her, that the injunction should not be granted, upon the ground that the judgment was entered for money received by the defendant in a fiduciary capacity and embezzled by him.

It appears from the judgment roll that the judgment was entered upon a promissory note, and whatever may have been the consideration for this promissory note is entirely immaterial because if there had been any fraud out of which this consideration arose, by suing upon the note simply the fraud was waived and only the debt remained. And this debt having become merged in the judgment comes within the operative force of the bankruptcy discharge.

The order should be affirmed, with ten dollars costs and disbursements.

Van Bbunt, P. J., Beady and Daniels, JJ., concur.