Harris v. Steinwax

205 A.D. 317, 199 N.Y.S. 447, 1923 N.Y. App. Div. LEXIS 5013

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1923
• Status: Published

Opinions

Page, J.:

The defendant moved to cancel judgments separately recovered by the respective plaintiffs against the defendant for negligence, on an order of the United States District Court for the Western District of New York, entered in the matter of Otto Steinwax, bankrupt, dated September 26, 1921, forever discharging said Steinwax from all debts and claims which by the act of Congress, entitled “ An Act to establish a uniform system of bankruptcy throughout the United States,"

* are made provable against his estate, and which existed on July 26, 1917, excepting such debts as are by law excepted from operation of a discharge in bankruptcy; and on his own affidavit that the judgments of the plaintiffs were included in the schedule of creditors and actual notice given to the plaintiffs and to their attorney.

In opposition to this motion the plaintiffs’ attorney presented his affidavit, stating that he entered the Navy at the entrance of the country into the World War, and did not receive the notice, and that he had been unable to learn the plaintiffs’ address, they having removed from the place of their residence at the time the judgments were recovered. In reply the defendant made proof of the publication of the notice of the first meeting of creditors, and also of the mailing thereof to the plaintiffs in care of their attorney. The plaintiffs’ attorney argues that the debt was not properly scheduled, but a copy of the schedules, or of that portion relating to these judgments, is not annexed, nor are the affidavits of the clients produced, showing that they had no notice or knowledge of the bankruptcy proceedings. Upon these facts, the court should have granted the order. Section 150 of the Debtor and Creditor Law * applies to this case and is mandatory upon the court to grant an order canceling a judgment at any time after one year has elapsed since a bankrupt was discharged from his debts, if it appears that- he hag been discharged from the payment of that judgment The court in Kreitlein v. Ferger (238 U. S. 21, 26) said: “ Under the provisions of § 30 of the Bankruptcy Act, † this court has prescribed the form [59] of the `Order of Discharge ’ which, among other things, contains a recital that the bankrupt has been discharged from all provable debts existing at the date of the filing of the petition, ‘ excepting such as are by law excepted from the operation of a discharge in bankruptcy.’ Section 21f further declares that a certified copy of such order shall be evidence of the jurisdiction of the court, the regularity of the proceedings, and of the fact that the order was made.’ ”

In Matter of Peterson (137 App. Div. 435, 438), referring to section 21, subdivision f, of the Bankruptcy Act (30 U. S. Stat. at Large, 552), the court said: “Under this provision it would be presumed that the debts in question were scheduled properly, and that the appellants had notice of the bankruptcy proceedings.”

The evidence submitted in opposition to the motion was not sufficient to overcome the presumptions raised by the order of discharge.

The orders should be reversed, with ten dollars costs and disbursements, and the motions granted, with ten dollars costs.

Dowling, Merrell and McAvoy, JJ., concur; Finch, J., dissents.

See 30 U. S. Stat. at Large, 544, chap. 541, as amd.- [Rep.

Since amd. by Laws of 1922, chap. 77.- [Rep.

See 30 U. S. Stat. at Large, 554, § 30.- [Rep.