In re the Application of Mollner

78 N.Y.S. 281 | N.Y. App. Div. | 1902

Patterson, J.:

On the 20th of February, 1901, the appellant was discharged by a decree in bankruptcy from all debts and claims which were provable against his estate and existed on the 5 th day of January, 1901. A year having elapsed from the daté of his discharge, he made an application under section 1268 of the Code of Civil Procedure of the State of New York for an order directing that a' judgment which had been recovered against him by one John A. Moore be •canceled and discharged of record. That judgment was docketed in the office of the clerk of the county of New York on the 11th day of May, 1900, and there can be no doubt that the judgment and the debt upon which it was founded were provable in bankruptcy and that the appellant was discharged therefrom, unless for some reason the judgment and the debt were excepted from the operation of the discharge. The application to cancel the judgment was resisted by Moore, the judgment creditor, and was denied at the Special Term, and from the order entered upon such denial this appeal is taken.

■ It is contended that the discharge was ineffectual to release the appellant from his indebtedness to Moore for the reason that such indebtedness was not duly or properly scheduled in the bankruptcy proceeding. Section 17 of the Bankruptcy Law (30 IT. S. Stat. at Large 550) provides, in effect,, among other things, that a discharge in bankruptcy shall release a bankrupt from all provable debts, •except such as “ have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.” Section 7 of the Bankruptcy Law {supra, 548), provides, among other things, that it shall be the duty of the bankrupt to prepare, make oath to, and file in- court a list of his creditors showing their residences, if known; if unknown, that fact to be stated.

In the schedule filed by Mollner in his bankruptcy proceeding John A. Moore, the judgment creditor, is named as a creditor, but it is stated that his address was unknown. The allegation of Moore is that that statement was “ not true or correct in fact,” and that, therefore, the judgment debt was not properly scheduled as required by the Bankruptcy Law, with the name and known address of the judgment creditor. It is nowhere directly alleged by Móore, nor is there any proof to show, that the statement that his address was unknown to Mollner was fraudulently inserted in the petition or ■schedule in bankruptcy. It is doubtful, under such circumstances, whether the discharge can be attacked collaterally in this proceeding. Section 1268 of the Code of Civil Procedure provides that if it appears upon the hearing that the bankrupt has been discharged from the payment of the judgment, or the debt upon which it was recovered, an order must be entered canceling the judgment; but if we assume that fraud in procuring the discharge would be a good ground for denying an application such as the present, there is no proof in this case that such fraud was practiced by the bankrupt. At the utmost all that is shown by the respondent here is, "that in August or September, 1898, the bankrupt called on the respondent at the latter’s house, No. 310 West Seventy-eighth street, in the city of New York. Mollner knew then, in August or September, 1898, where the respondent Moore lived, but nothing whatever ■appears in the papers to indicate that he had any knowledge of Moore’s whereabouts or residence after September, 1898. Mollner’s petition in bankruptcy was filed on the 5th of January, 1901. There is nothing whatever in the papers to show that at the time the petition was filed he knew that Moore still lived at the address in West Seventy-eighth street. There is nothing that would impute to him knowledge that Moore still resided at that place, unless Mollner is to be bound by a presumption that if his creditor at the time the indebtedness was incurred lived at a certain place, he still continued to reside there. The Bankruptcy Law does not require that the schedule shall state the last known place of residence of a ■creditor.

We think the evidence was entirely insufficient to show that there was fraud, either by way of assertion or concealment, in Mollner inserting in his schedule that the residence of Moore was unknown.

The order appealed from should, therefore, be reversed, with costs, and the motion to cancel the judgment granted, with costs.

Ingraham and Hatch, JJ., concurred; Van Brunt, P. J., concurred in result; Laughlin, J., dissented on the ground that scheduling this creditor as unknown was fraudulent and that the judgment debtor is not entitled to discharge.

Order reversed, with costs, and motion to cancel judgment granted, with costs.