Bailey v. Kraus

39 Misc. 845, 81 N.Y.S. 492

• Court: City of New York Municipal Court
• Decided: January 15, 1903
• Status: Published

Opinions

McCarthy, J.

This action was brought to recover the balance due for the board and care of the defendant’s horses. Upon the trial an attempt was made by the defendant to prove his discharge in bankruptcy subsequent to the contracting of the debt, to recover which this action was brought. The trial justice excluded proof of the defendant’s discharge in bankruptcy, to which exclusion the defendant excepted. The defense which the defendant attempted, being in confession and avoidance of the cause of action, must be pleaded to authorize evidence thereof to be given upon the trial. McKyring v. Bull, 16 N. Y. 297; Revere Copper Co. v. Dimock, 90 id. 33. The allegations under which the defendant attempted to prove his discharge were merely to the effect that on January 25, 1899, he duly filed his petition in bankruptcy under the act of Congress approved July 1, 1898, and that subsequently he surrendered his property and was adjudged a bankrupt, and was duly and legally discharged “ from all his debts and liabilities of every kind, nature and description, provable under the laws hereinbefore referred to.” The answer of the defendant does not show in which one of the United States District Courts the defendant filed his petition, or allege facts showing that the court in which the proceedings were taken had jurisdiction of the parties or subject-matter. In failing to contain these allegations the answer was insufficient to admit proof of the defendant’s discharge in bankruptcy. Cromwell v. Burr, 59 How. Pr. 93; Morrison v. Woolson, 29 N. H. 510; Sackett v. Andross, 5 Hill, 327; McCormick v. Pickering, 4 N. Y. 276; Baylies Code Pl. 252.

The only other question calling for consideration upon this appeal is presented by the refusal of the trial justice to permit the defendant to amend the answer. The plaintiff was informed by the original answer that the defendant relied upon his discharge in bankruptcy as a defense. The application to amend the answer so as to allow proof of discharge from the claim in suit, while late, was nevertheless addressed to the sound discretion of the court, and ought to have been allowed on such terms as appeared fair and reasonable. No claim of surprise was made at the time the amendment was asked for. The defense was statutory and went to the whole cause of action. To the refusal of the court to allow the amendment the defendant duly excepted.

We are of the opinion that the refusal deprived the defendant of a substantial right and was error. For these reasons we think the judgment should be reversed, without costs, and a new trial ordered, with leave to appellant to apply at Special Term to amend his answer.

Conlan, J., concurs.