76 N.Y.S. 40 | N.Y. App. Div. | 1902
Except for the written agreement made by James R. Baumes to pay any final judgment rendered against the defendants in this action, or so much of such judgment as remains unpaid after execution shall be returned, I think leave to serve a supplemental answer making the discharge in bankruptcy a defense should be granted. The claim belongs to that class which the Bankruptcy Law declares provable, and, hence, is barred by a discharge. The claim is upon a promissory note. The defendants have. by answer set up matter in defense, and the bankruptcy court on that account has treated it as “ unliquidated ” and directed that it be liquidated in this action. This is only a means, taken to determine how much, if anything, is owing by the bankrupts on the note, how much the trustee in bankruptcy shall allow in distribution of the assets.
The case I think is a proper one for'the exercise of judicial discretion. (Holyoke v. Adams, 59 N. Y. 233.) The situation seems to be this: If the ¡application were granted it would be possible for defendants to prevent the entry of any judgment against them, and
The order should be affirmed, with ten dollars costs and disbursements.
All concurred. ■
Order affirmed, with ten dollars and disbursements.