Amster v. Mayer

240 A.D. 971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1933
• Status: Published

Opinion

Judgment of the City Court of Mount Vernon reversed on the law and the facts and a new trial ordered in said court, with costs to abide the event. As the record stands the debt upon which the plaintiff sued was “ duly scheduled ” in bankruptcy proceedings and the defendant discharged (Matter of Merchants Bank v. Miller, 176 App. Div. 412; affd., 221 N. Y. 490); and the plaintiff has not sustained the burden east upon him when the discharge in bankruptcy was offered in evidence by simply showing that the address in the schedule of liabilities was his business address instead of that of his residence. The denial that he received the notice is not sufficient. He should go further and show that his name did not appear upon the list of creditors to whom notice was sent, and that no notice was, in fact, mailed. Lazansky, P. J., Kapper, Carswell, Tompkins and Davis, JJ., concur.