Henderson v. Savage — 46 N.Y. Super. Ct. 221

Majority

p. 221

PHEBE HENDERSON, Respondent, v. JOHN Y. SAVAGE, Appellant.

Headnote

Inquest—motion to open,—when denied.

An application to open an inquest and serve a supplemental answer setting up a discharge in bankruptcy, will not be granted when it appears that the discharge was obtained pending the action, and that defendant made no motion to amend his answer (though the inquest was not taken till a year after the discharge), and that no motion to open the inquest was made till several years after judgment, no excuse for defendant’s laches appearing.

Before Curtis, Ch. J., and' Sedgwick, J.

Decided June 18, 1880.

Appeal from order denying motion to open inquest and for leave to serve a supplemental answer setting up discharge in bankruptcy.

The facts sufficiently appear in the opinion.

Nelson J. Waterbury, for appellant.

James Henderson, for respondent.

If the learned court below was correct, in denying the motion, on the ground that there had been laches in making the application to set up the discharge in bankruptcy, the appellant showed no right to have the inquest opened, for it was practically admitted, or, at least, the papers disclosed that on the merits the appellants could rely only on the discharge. Under the circumstances, whether the appellant should have leave to make the defense was within the discretion of the court.

This discretion was not regulated alone by the

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character of the immediate issue. Its exercise depended also upon considerations of general rules, involving public policy. One of these is that unreasonable and unexplained delay in making an application, requires a denial of the application. In the present, case it cannot be held that the facts show that the court exercised its discretion improperly.

The action was begun in September, 1869. In March, 1871, the defendant obtained his discharge in bankruptcy. In 1872, the inquest was taken, and in June of that year judgment was entered. It appeared in evidence that the defendant knew that execution had been issued. The papers show that he was aware of the necessity of setting up the discharge by answer, in order to benefit by it, in this action. No application to set up the discharge was made until 1879, and after an order of examination in supplementary proceedings had been served. There are no facts alleged which appear to have required the court to hold that this, delay was excused.

The order should be affirmed, with $10 costs.

Curtis, Ch. J., concurred.