103 N.Y.S. 1037 | N.Y. Sup. Ct. | 1907
This is a common-law action on a bond. The conceded facts are that defendant executed his bond and a collateral mortgage on his real property which were thereafter assigned by the mortgagee to plaintiff’s testatrix; that the assignment of mortgage was duly recorded in the office of the register prior to defendant’s discharge in bankruptcy; that defendant had no actual notice of the assignment, and that the original mortgagee alone was described in the defendant’s schedules in bankruptcy as the creditor whose indebtedness was evidenced by the bond in suit. Whether the discharge in bankruptcy is a good defense is the question presented. Plaintiff contends that the omission of the name of his testatrix as creditor in the bankruptcy schedules overcomes the effect of the discharge, urging that the record of the assignment of the mortgage was constructive notice to defendant of her ownership of the bond. The
Judgment for defendant, with costs.