Charles F. Starr, Resp’t, v. Charles G. Patterson, App’lt.(Supreme Court, General Term,, First Department,Headnote
Appeal—Questions of fact.A judgment debtor having moved for a perpetual stay of execution on the ground that he had been discharged under the insolvency laws of Massachusetts, the creditor- claimed that the motion should be denied on the ground that his name had not been included in the list of creditors as required by said law. The referee having reported, the court denied the motion, holding that the evidence did not sustain the finding that defendant had not fraudulently omitted plaintiff’s name, and defendant appeals from the denial of his motion. Held, that as the case was disposed of simply upon the question of fact, the order must be affirmed, but with permission on payment of costs to renew the motion on additional papers.
Plaintiff issued an execution upon a judgment obtained against defendant and the latter moved for a perpetual stay on the ground that he had obtained a discharge from his debts under the insolvency laws of Massachusetts, which provides, Pub. St., Mass., chap. 157, § 19, that the debtor shall make on oath, “ a schedule, containing a full and true account of all his creditors, with the place of residence of each creditor, if known to the debtor, and the sum due to each of them,” and also provides, by § 81, that the certificate of discharge given thereon, “ shall be conclusive evidence of the fact and regularity of sucb discharge.”
The referee to whom the matter was referred having reported, the court denied the motion holding that the evidence did not sustain the finding that defendant had not fraudulently omitted plaintiff’s name from the schedules in the insolvency proceedings, and defendant appealed.
J. W. Lawton, for app’lt; Payson Merrill, for resp’t.
Upon an examination of the papers in this case, we are of opinion that the statute printed in the appellant’s points presents an entirely different question from any which has ever been before the court before. On the original motion the only question before the court was as to whether or not the omission of the plaintiff’s name as a creditor was an act of fraud; and that question was referred to a referee for further proof. On the motion coming up again on the referee’s report, the questions of law were not presented, but the case was disposed of simply upon the question of fact, and there being no change in the testimony, the order now appealed from was made.
This new matter, however, arising under the statute of Massachusetts may require further consideration and a different disposition of the case, but as the record now stands that subject cannot be considered.
The order appealed from must be affirmed, with ten dollars costs and disbursements, but with leave on payment of the costs of this appeal and of the proceedings in the court below to renew the motion upon additional papers.
Van Brunt, P. J. and Patterson, J., concur.