Mulock v. Byrne

New York Supreme Court

Mulock v. Byrne

13 N.Y.S. 190, 36 N.Y. St. Rep. 551, 1891 N.Y. Misc. LEXIS 1022

DecidedJanuary 16, 1891

StatusPublished

This text of 13 N.Y.S. 190 (Mulock v. Byrne) 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

Mulock v. Byrne, 13 N.Y.S. 190, 36 N.Y. St. Rep. 551, 1891 N.Y. Misc. LEXIS 1022 (N.Y. Super. Ct. 1891).

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Opinion

Per Curiam.

It is claimed upon the part of the appellant, who is the assignee of the judgment owned by her, that the injunction should not be granted, upon the ground that the judgment was entered for money received by the defendant in a fiduciary capacity, and embezzled by him. It appears from the judgment roll that the judgment was entered upon a promissory note, and whatever may have been the consideration for this promissory note is entirely immaterial, because, if there had been any fraud, out of which this consideration arose, by suing upon the note simply, the fraud was waived, [191]*191and only the debt remained. And this .debt, having become merged in the judgment, comes within the operative force of the bankruptcy discharge. The order should be affirmed, with $10 costs and disbursements.

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Per Curiam.

It is claimed upon the part of the appellant, who is the assignee of the judgment owned by her, that the injunction should not be granted, upon the ground that the judgment was entered for money received by the defendant in a fiduciary capacity, and embezzled by him. It appears from the judgment roll that the judgment was entered upon a promissory note, and whatever may have been the consideration for this promissory note is entirely immaterial, because, if there had been any fraud, out of which this consideration arose, by suing upon the note simply, the fraud was waived, [191]*191and only the debt remained. And this .debt, having become merged in the judgment, comes within the operative force of the bankruptcy discharge. The order should be affirmed, with $10 costs and disbursements.

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Bluebook (online)

13 N.Y.S. 190, 36 N.Y. St. Rep. 551, 1891 N.Y. Misc. LEXIS 1022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulock-v-byrne-nysupct-1891.