In re Pulver

6 Wend. 632

• Court: New York Supreme Court
• Decided: May 15, 1831
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The only question in this matter is, whether the judge or commissioner, to whom an insolvent applies for a discharge, is obliged to wait any time after the hour appointed for the creditors to appear and shew cause.

In this case a creditor appeared thirty minutes after the time; the order for the assignment had been made, the assignment executed, and the discharge was signed but not delivered. It is contended that the officer, in a case like this, should wait one hour. In Shufelt v. Cramer, 20 Johns. R. 309, this court said a justice was bound to wait a reasonable time, and that one hour was such reasonable time. They say, “This is in conformity to the practice on a summons, to shew cause before a judge.” The English practice on summons is to wait half an hour. 2 Arch, 278. One hour is no more than a reasonable time to wait for creditors to appear and shew cause; but my difficulty is as to the power of this court to interfere in such matter. The legislature, I have no doubt, intended the creditors should have time enough to appear. The language is, that the officer, on recejv¡ng t¡ie petition, &c. shall appoint a day and place; the expression of time and place is also used. In this case the officer did not proceed until after the hour: and he adopted, , . . . , . r • what was his usual practice, to proceed within a tew minutes after the hour, when he had not been informed of any opposition. The proceedings cannot be said to be irregular, the commissioner had authority to proceed ; and I am in favor of permitting such officers to exercise their own discretion as to their own practice.

I think the proceedings should be affirmed.