Maier v. Maier, 135 N.Y.S. 1038

Maier v. Maier

135 N.Y.S. 1038 | N.Y. App. Term. | 1912

Seabury, J.

The defendant appeals from an order denying a motion to cancel a judgment obtained by the plaintiff against the defendant. The application was made upon the ground that the defendant had been discharged in bankruptcy more than one year prior to the time of the application. The judgment was obtained for alimony due to plaintiff, and was included in the schedules of debts filed by the defendant. • Section 17 of the Bankruptcy Act provides that “ a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * (3) are # * for alimony due or to become due, or for main*146tenance or support of wife or child.” The exception quoted above was included in the act by the amendment of ¡1903. This amendment has been held to be merely declaratory of the true meaning and sense of the statute as originally enacted. Wetmore v. Markoe, 196 U. S. 68. While the judgment is prima facie evidence of a debt, the court may look behind the judgment in order to discover its true character. “ The reason for this,” says Mr. Loveland, “ is, that the judgment does not change the nature of the liability.” 1 Lovel. Bank. 613. In Boynton v. Ball, 121 U. S. 457, 466, the court said: “But this court, to which this precise question is now presented for the first time, is clearly of opinion that the debt on which this judgment was rendered is the same debt that it was before; that, notwithstanding the change in its form from that of a simple contract debt, or unliquidated claim, or whatever its character may have been, by merger into a judgment of a court of record, it still remains the same debt on which the action was brought in the state court, and the existence of which was provable in bankruptcy.”

The fact that the plaintiff may have' other remedies, which she may pursue in the state court upon the order awarding alimony, does not, as the appellant seems to assume, preclude the plaintiff from objecting to the cancellation of her judgment, upon the ground that the defendant has been discharged from his debts in bankruptcy. Whether or not the judgment should have been canceled depends upon the nature and character of the liability for which it was recovered, and, by the express terms of the Bankruptcy Act, the debt is not discharged. It follows that the motion was properly denied.

Order affirmed, with ten dollars costs and disbursements.

Lehman and Bijur, JJ., concur.

Order affirmed, with costs.