Parkinson v. Scoville

19 Wend. 150 | N.Y. Sup. Ct. | 1838

By the Court,

Bronson, J.

As the defendant has had no day in court to plead this matter, he is entitled to relief on motion, if the discharge is operative against the plaintiff.

The plaintiff, so far as appears, has never been a resident of this state, nor has he in any form acquiesced in the discharge. But as the contract was made, and was to be ex-The case at Lbar falls within both of the two first classes and the motion must therefore be granted. ecuted within this state, the debt was discharged without any reference to the residence of the creditor. 2 R. S. 22, ~` 30, 3~. The two clauses of the 30th section do not limit or qualify each other, but each provides for different classes of cases. The debt is discharged,first, where the contract was made within this state; second, where the contract was to be executed within this state ; third, where the creditor at the time of the first publication of notice was a resident of this state; and fourth, where the creditor, being a non-resident, either united in the petition for a discharge, or has accepted a dividend from the insolvent's estate. Tn the two first classes of cases, the residence of the creditor is unimportant; in the two last, the place where the contract was made, or was to be executed, are matters of no moment.

Motion granted.