Cagliostro v. Indelli

102 N.Y.S. 918 | N.Y. Sup. Ct. | 1907

Giegerich, J.

Upon this motion for the discharge of a judgment the only question is as to whether the address of the judgment creditor as set forth in the schedules was sufficient. The residence, as stated in such schedules, is simply “Mulberry street, New York City.” In opposition it is shown that the creditor in fact resides at No. 141 Mulberry street, and was residing at that place at the time of the filing of -the petition and schedules, and had resided at such place for fifteen years last past, and that his name and address have regularly appeared in the city directories since the time the judgment was rendered, and, furthermore, that his attorney’s name appears on the transcript of the judgment, and that the attorney’s name and address have regularly appeared in the city and telephone directories since the time the judgment was rendered. The judgment creditor also denies that he had any knowledge that the defendant had filed a petition in bankruptcy, until he was informed by his attorney that the present motion^had been made, and that he ever received any notice, personally or by mail or otherwise, calling upon him to prove'his claim. I am satisfied that the petitioner, when he made up the schedules, failed to use due efforts to learn the street number of the judgment creditor, and that it was owing to such failure on his part that the judgment creditor received no notice. Such failure deprives him of the right to a discharge of such judgment. Columbia Bank v. Birkett, 174 N. Y. 112; Sutherland v. Lasher, 41 Misc. Rep. 249; affd., 87 App. Div. 633. It may be that, in the absence of other evidence, there is a presumption that the postal authorities would deliver a letter to the plaintiff addressed, simply, “ Mulberry street,” without any addition of the street number; but such presumption cannot prevail as against the positive statement of the plaintiff that he never received such notice.

Motion denied, without costs.