183 A.D. 424 | N.Y. App. Div. | 1918
The proceeding is supplementary to execution against property upon a judgment obtained in an action in equity. Mandelman, one of the judgment debtors, claims that the debt evidenced by said judgment has been discharged as to him in his bankruptcy proceedings. The question involved upon this appeal is whether the debt was dischargeable in bankruptcy. The facts found in the equity action were, briefly stated, as follows:
. The plaintiff had organized a corporation in which he owned the entire capital stock, consisting of-100 shares. The corporation obtained a lease of certain premises and installed furniture and other personal property and conducted a hotel in the said premises. The plaintiff and the defendant Cohen thereafter entered into an agreement in writing whereby plaintiff sold to Cohen the 100 shares of stock in said corporation for a consideration of $17,000, payable $250 at the time of the signing of the agreement, and $250 monthly in advance for the first year, and $300 monthly in advance thereafter until the full sum of $17,000 should be paid. The contract further provided that said Cohen could not assign the same without obtaining the consent of plaintiff, and that in the event of the failure of Cohen to perform the terms of the agreement on his part the plaintiff could demand the return of the stock and the possession of the premises without
Interlocutory judgment was entered on the 9th day of May, 1917, and final judgment was entered against Cohen and Mandelman on the 22d day of August, 1917, for $2,317.76. On the 11th day of August, 1917, an involuntary petition in bankruptcy was filed against Mandelman, and on the fourteenth day of August he was adjudicated a bankrupt. On the fifteenth day of August he filed schedules in which were set' forth the claim of Barbery as a claim for unliquidated damages. In September, the schedules were amended by setting forth the amount of the judgment. Mandelman claims that by virtue of these proceedings, he has been discharged from the debt.
Section 17 of the United States Bankruptcy Act as originally enacted provided: “ A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * (2) are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of
Applying this test to the instant case, Cohen obtained possession of the property by making a small installment payment and, contrary to the express terms of the agreement, transferred the property to. Mandelman, who took it with full knowledge of the rights of the plaintiff. This was a deliberate and willful attempt to deprive the plaintiff of his property and defeat any right to recovery therefor. The court has found that the property was willfully and wrongfully detained from the plaintiff’s possession. The judgment was for the damages for the wrongful and willful detention. It is, in
The order of the Special Term should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Laughlin, Smith and Shearn, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.