In re the Application of Patton — 58 N.Y. St. Rep. 512

Majority

p. 512

In the Matter of the Application of William L. Patton, for his Discharge from Imprisonment.

(New York Common Pleas, Special Term,

Filed March, 1894.)

Headnote

Insolvent debtor—Discharge.

Upon an application for the discharge of a debtor from imprisonment, the schedule of property must set forth facts, and not mere conclusions.

Application for the discharge of an imprisoned debtor from imprisonment.

Oudin tfe Oalcley, for petitioner; Bobert D. Honeyman, for judgment creditor, opposed.

It is essential to the jurisdiction of the court, in proceedings for the discharge of an imprisoned judgment ■debtor from imprisonment, that the papers upon which the application is founded should conform with exactness to the provisions ■of the statute. People v. Bancker, 5 N. Y., 106 ; People v. Brooks, 40 How., 165 ; Bullymore v. Cooper, 46 N. Y., 236 ; Schaffer v. Risley, 114 N. Y., 23 ; 22 St. Rep. 168 ; Bishop on Insolvent Debtors, 2nd ed., p. 87. The Code requires that the petitioner must annex to his petition, and present therewith, “ a schedule containing a just and true account of all his property, and of all charges affecting the same, as the property and charges existed at the time when he was first imprisoned, and, also, as they exist at the time when the petition is prepared.” Code of Civ. Pro., § 2203. Before the court can direct an assignment it must be satisfied “ that the petition and schedule are correct, and that the petitioner’s proceedings are just and fair.” Code of Civ. Pro., § 2208.

The petition herein is accompanied by an account of the prisoner’s property, and the charges affecting the same, at the time when he was first imprisoned; There is also annexed the following statement: “III. A just and true statement of all my property and charges affecting it as it existed at the time my petition was prepared, to wit: March 6th, 1894. There has been no substantial change in the condition of my property since I was first imprisoned.”

This is the only statement contained in the moving papers relating to the prisoners’s property at the timé of preparing the petition, and, in my opinion it wholly fails to comply with the

p. 513

requirements of the provisions of the Code above cited. Such is not the “just and true account” contemplated by the statute. The facts, not the mere conclusion from facts, must be set forth in order that the court may determine whether the schedule is •correct and whether the petitioner’s proceedings are just and fair.

Eo facts in this regard, having been presented, I am unable to determine whether the assertion of the prisoner, that there has been no material change in the condition of his property since he was imprisoned, be true or false.

Application denied, with leave to renew on sufficient papers.