Watertown Carriage Co. v. Hall

72 N.Y.S. 466 | N.Y. App. Div. | 1901

Smith, J.:

This judgment can only stand if the sole cause of action alleged in the complaint be of a class not discharged by the defendant’s discharge in bankruptcy. If any other cause of action be alleged upon which the discharge in bankruptcy could operate then the defense was properly pleaded, notwithstanding there be also joined in the complaint a cause of action for embezzlement as against which a discharge in bankruptcy would be ineffective. Upon examination of the complaint it will be seen that there are allegations of plaintiff’s ownership of this sixty-five dollars, and of his demand therefor upon the defendant, and of the defendant’s refusal to deliver the same. Under such allegations proof of a conversion of funds lawfully obtained by the defendant would seem to be competent, and the allegation of unlawful and fraudulent embezzlement and, misappropriation could be treated as surplusage. But as a defense to a. cause of action for conversion the discharge in bankruptcy is properly pleaded, and the demurrer to such plea as insuffcient in law upon the face thereof should have been overruled

The interlocutory judgment should, therefore, be -reversed, with costs, and the demurrer overruled, with costs.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer overruled, with costs.