Bailey v. Kraus

35 Misc. 851, 72 N.Y.S. 1094

Opinion

Hascall, J.

Action was brought by plaintiff to recover for the board and care of defendant’s horses and carriages. Defendant set up a discharge in bankruptcy. The learned court at trial term dismissed the complaint under the case of Stevens v. King, 16 App. Div. 377.

We think this was error. The authority cited is certainly good so far as requisites of notice to creditors and proofs thereof are concerned, but does not go to the extent of deciding that, under an indifferent pleading, any testimony offered, concerning bankruptcy and proceedings incident thereto, must be received as binding, whether complete or not, interlocutory or final.

In the case before us, there is no evidence of a decree of discharge nor offer to prove one, in the short shrift given to the appellant.

Judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Conlan and O’Dwyer, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.