Vaughn v. Irwin

49 Misc. 611 | N.Y. App. Term. | 1905

Scott, J.

Appeal from an order denying a motion to cancel and vacate a judgment by reason of the discharge in bankruptcy of the judgment debtor. The motion was denied because in the schedules the plaintiff’s residence was stated as No. 31 Nassau street, New York city, whereas she had never resided there, but did in fact reside elsewhere.

Ordinarily this fact would be quite sufficient to warrant a denial of the motion to vacate, but the circumstances of this case are unusual. The defendant’s attorney swears that he called at the office of plaintiff’s attorneys, which was at No. 31 Nassau street, and inquired plaintiff’s address, saying that he wished to serve a notice upon her, and that one of the attorneys said that a notice sent to that building would reach _ier. This is not denied or attempted to be modified in any a-ay by plaintiff’s attorneys. We might, if there was any-hing to support it, readily believe that what the plaintiff’s attorney said was that a notice addressed to that building, in care of her attorneys, would reach her; but no such statement is made, and we must, therefore, accept the statement of defendant’s attorney as it is made. Furthermore, the very day that the petition in bankruptcy was filed, plaintiff’s .attorneys were served with a stay order issued out of the United States District Court reciting the filing of the petition. The plaintiff’s attorneys, therefore, had actual notice •of the commencement of the proceedings and could have protected their client’s interests if necessary.

In my opinion the order should be reversed, with ten dollars costs and disbursements, and the motion granted.

Bischost and MacBeaw, JJ., concur.

Judgment reversed, with ten dollars costs and disbursements, and motion granted.