Lyon v. Marshall

11 Barb. 241, 1851 N.Y. App. Div. LEXIS 23

• Court: New York Supreme Court
• Decided: June 14, 1851
• Status: Published

Opinion

By the Court,

Edwards, J.

The first exception taken by the plaintiffs, was, to the admission in evidence of the objections which were made by them, in the United States district court, to the defendant’s being declared a bankrupt. It will be seen, by reference to these objections, that they related to the same matters as those which were set up in this suit, for the purpose of defeating the defendant’s discharge. We think that there was no impropriety in the defendant’s showing that the plaintiffs knew of all these matters, at the time that the bankrupt’s proceedings were pending; and that they, in fact, raised the same objections in the course of those proceedings. Neither was there any impropriety in his showing that they were not considered available, in opposition to the granting of the decree of bankruptcy. The order of the court, which was made in this matter, proved nothing more than was already admitted by the pleadings ; for there was no denial of the plea of a discharge in bankruptcy.

The next exception was to the judge’s charge. This exception is general, and not to any particular part. But, even if exceptions had been taken to each particular part of the charge, we think that they could not be sustained. The first objection which was made upon the argument, was, that the judge stated that the alledged omissions in the defendant’s petition and schedules, to be sufficient to impeach the discharge, must be willful and fraudulent, instead of saying that they must be willful. But it appears that in a subsequent part of his charge, he lays down the rule, that to avoid a discharge in bankruptcy, it must appear that the defendant has committed a fraud, or willfully concealed his property. The word fraudulent was, evidently, not intended to mean any thing more than willful, and taking the whole charge together, we think that the jury must have so understood it.

The next objection is, that the judge stated that a party applying for the benefit of the bankrupt act, had a right to set aside property for the maintenance of himself and family. But this is no ground of error, for it had nothing to do with the case. (Hayden v. Palmer, 2 Hill, 206.) The next objection taken is, that the judge charged that the defendant had a right to apply a reasonable amount of his property to the payment of the expense of proceedings to obtain his discharge; and that if such application was made previous to filing his petition, he might omit to mention such property in his petition and schedules. A person may, without committing a fraud, make a reasonable compensation to counsel for the purpose of defraying the expenses of his discharge; otherwise, the law could be of no avail to him. And if he does part with his property for that purpose, he can not be said to conceal it, if he omits to set forth such property in his petition. He has nothing which he can conceal. We think, too, that the judge was right in refusing to charge as requested, for there was nothing in the case to call for such a charge.

[New-York General Term, June 14, 1851.

Edmonds, Edwards and Mitchell, Justices.]

The next question arises upon the certiorari which was issued, ¿Hedging diminution. It appears that the defendant entered up judgment in the court below for his costs. This the plaintiffs contend was irregular, as they sued as executors. The instrument sued upon was made payable “ to the estate of Moses Lyon deceased,” and not to any person or persons by name. Such an instrument is, clearly, not a promissory note under the statute. But, whatever it may be considered, it certainly is not a promise to pay the testator, for he is described as deceased. It could only be recovered upon as a promise to pay some other person or persons. If it be regarded as a promise to pay the plaintiffs, as it was treated in this case, there was no necessity for their suing in a representative capacity; and, having done so unne-

cessarily, they are liable to pay costs, -without a special motion or order for that purpose. (Goldthwayte v. Petrie, 5 T. R. 234. Ketchum v. Ketchum, 4 Cowen. 87. The People v. The Judges of The Albany Mayors Court, 9 Wend. 486.)

The judgment below must be affirmed.