Freiberg v. Popper

New York Supreme Court

Freiberg v. Popper

19 N.Y. Sup. Ct. 658

DecidedJanuary 15, 1878

StatusPublished

This text of 19 N.Y. Sup. Ct. 658 (Freiberg v. Popper) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Freiberg v. Popper, 19 N.Y. Sup. Ct. 658 (N.Y. Super. Ct. 1878).

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Opinion

Brady, J. :

The action was one in which the right to arrest was given as a provisional remedy. This right was exercised and an order of arrest [660]*660obtained, which was not vacated. The facts set forth on the appli cation for that order were quite sufficient to warrant it, and author ized the adjudication made upon the fraud alleged, and which was not in any way disturbed. The provisions of the bankrupt law expressly exclude debts contracted by fraud. It was intended that such obligations should not be discharged, and hence the exception in the statute. (Section 5111 IT. S.; title, Bankruptcy.) Having arrived at the conclusion stated in regard to the character of the debt, the result is quite apparent, namely, that the order appealed from was incorrectly made and must be reversed. The case of Shuman v. Strauss (reported in 52 N. Y., p. 404) is not in conflict with this view. In that case the action was on contract, and the judgment was entered upon the complaint as such. No order of arrest was obtained in that case, and such a remedy was waived. The judgment extinguished the right and changed the nature of the claim. It was one of simple contract, and without the elements of fraud. The order appealed from should be reversed, with ten dollars costs and disbursements.

Davis, P. J., and Ingalls, J., concurred.

Order reversed, with ten dollars costs and disbursements.

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Brady, J. :

The action was one in which the right to arrest was given as a provisional remedy. This right was exercised and an order of arrest [660]*660obtained, which was not vacated. The facts set forth on the appli cation for that order were quite sufficient to warrant it, and author ized the adjudication made upon the fraud alleged, and which was not in any way disturbed. The provisions of the bankrupt law expressly exclude debts contracted by fraud. It was intended that such obligations should not be discharged, and hence the exception in the statute. (Section 5111 IT. S.; title, Bankruptcy.) Having arrived at the conclusion stated in regard to the character of the debt, the result is quite apparent, namely, that the order appealed from was incorrectly made and must be reversed. The case of Shuman v. Strauss (reported in 52 N. Y., p. 404) is not in conflict with this view. In that case the action was on contract, and the judgment was entered upon the complaint as such. No order of arrest was obtained in that case, and such a remedy was waived. The judgment extinguished the right and changed the nature of the claim. It was one of simple contract, and without the elements of fraud. The order appealed from should be reversed, with ten dollars costs and disbursements.

Davis, P. J., and Ingalls, J., concurred.

Order reversed, with ten dollars costs and disbursements.

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Bluebook (online)

19 N.Y. Sup. Ct. 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freiberg-v-popper-nysupct-1878.