Levine v. Levine

262 A.D. 749, 27 N.Y.S.2d 299, 1941 N.Y. App. Div. LEXIS 5727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1941
• Status: Published

Opinion

In proceedings supplementary to judgment, the judgment debtor moved to vacate a subpoena served upon him for his examination upon the ground that the obligation referred to in the subpoena had been discharged in bankruptcy and for an order adjudging that the obligation referred to in the subpoena was discharged in bankruptcy. The holding by Special Term, in confirming the report of the official referee, was that there was a trust relationship between the debtor and the creditor within the meaning of section 17, subdivision a, clause (4), of the Bankruptcy Act. That clause applies only to express trusts. (Davis v. Ætna Acceptance Co., 293 U. S. 328, at p. 333.) The proof clearly shows that there was a willful and malicious conversion of the judgment creditor’s property by the judgment debtor so that the judgment by confession entered for such conversion was not a debt dischargeable in bankruptcy under clause (2) of subdivision a of section 17 of the Bankruptcy Act, by which are excepted “ liabilities * * * for willful and malicious injuries to the * * * property of another * * Order of April 5, 1941, resettling order of February 18, 1941, confirming report of official referee, etc., affirmed, with ten dollars costs and disbursements; examination of the judgment debtor and of Ashenfelter & Morrow, by George C. Morrow, to proceed on five days’ notice. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.