93 N.Y.S. 76 | N.Y. App. Div. | 1905
Lead Opinion
This motion was made by Louis Meryash and Albert London. They are not parties to the action, but are the owners of certain real estate which was formerly owned by the defendant James Gault. The judgment entered against James Gault in the action appears of record tó be a lien upon the real
“At any time after one year has elapsed, since the bankrupt was discharged from his debts, pursuant to the acts of Congress relating to bankruptcy, he may apply, upon proof of his discharge, to the court in which a judgment was rendered against him, * * * for an order, directing the judgment to be cancelled and discharged of record. It it appears upon the hearing that he has been discharged from the payment of that judgment or the debt upon which such judgment was recovered, an order must be made directing said judgment be cancelled and discharged of record; * * * where the judgment was a lien on real property owned by the bankrupt prior to the time he was adjudged a bankrupt, the lien thereof upon said real estate shall not be affected by said order and may be enforced, but in all other respects the judgment shall be of no force or validity, nor shall the same be a lien oh real property acquired by him subsequent to his discharge in bankruptcy.”
The section further provides that notice of the application, accompanied by the papers upon which it is based, shall be served upon the judgment creditor or his attorney of record, and provides for service by publication in the event of death or of nonresidence, and for other reasons.
The purpose of this section was to provide for the discharge of a judgment which the bankrupt, by reason of his discharge in bankruptcy, becomes entitled to have removed from the records as an apparent lien. The intent of the section is in effect to provide a remedy for the "removal of a cloud upon title to land. While the language of the section confers the right upon the bankrupt to move for the discharge, yet it is evident that the basis of the right is not personal, but is founded solely upon the discharge in bankruptcy.
It is further contended that, if this construction obtain, yet, it devolved upon the bankrupt to show that the discharge in bankruptcy operated as a discharge of the particular debt. It does not appear from the moving papers that the judgment sought to be discharged was scheduled in the liabilities of the bankrupt, nor does it appear that the creditor had notice or knowledge of the proceedings in bankruptcy. By the provisions of subdivision 3 of section 17 of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 551 [U. S. Comp. St. 1901, p. 3428]), it is provided that a.debt is not affected by a discharge which has not been duly scheduled in time for proof and allowance in the name of the creditor, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. Section 21f (30 Stat. 552 [U. S. Comp. St. 1901, p. 3431]) provides for the effect of a discharge. It is made evidence of • the jurisdiction of the court, the regularity of the proceedings, and the fact that the order was made. It does not seem to extend to the establishment of the fact that the debt was scheduled, or that the creditor had notice or knowledge of the proceeding.' If- these facts
This leads us to the conclusion that the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, with leave to renew the same upon additional proof.
VAN BRUNT, P. J., and O’BRIEN and LAUGHEIN, JJ., concur.
Concurrence Opinion
I concur in the result. I think that, under section 1268 of the Code of Civil Procedure, an application to cancel the lien of a judgment, based upon the discharge in bankruptcy of the judgment debtor, must be made by the bankrupt. This section gives the bankrupt a personal right to have the lien of a judgment which, but for the discharge, would be a lien upon real estate, canceled; and there is no authority to cancel such a lien, except on application of the bankrupt. I do not think, however, that this judgment ever was a lien on the property described in the moving papers. The section provides that after his discharge a judgment against a bankrupt shall not be a lien on real property acquired by him subsequent to the discharge, and under this provision the judgment in question was not a lien upon the real property of the moving party. If the judgment was not a lien, there was nothing for the court tp do, as it could not discharge a lien which did not exist.