S. Denier & Son, Inc. v. Suderman

Appellate Terms of the Supreme Court of New York

S. Denier & Son, Inc. v. Suderman

123 Misc. 303, 205 N.Y.S. 169, 1924 N.Y. Misc. LEXIS 919

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 3, 1924

StatusPublished

This text of 123 Misc. 303 (S. Denier & Son, Inc. v. Suderman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

S. Denier & Son, Inc. v. Suderman, 123 Misc. 303, 205 N.Y.S. 169, 1924 N.Y. Misc. LEXIS 919 (N.Y. Ct. App. 1924).

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Opinion

Per Curiam.

The defense should not have been stricken out. It was error to assume that defendants would fail, in their proof and to refuse to hear their witnesses. That a composition had been confirmed in the bankruptcy court had been indicated by the testimony of plaintiff’s witness and that of counsel for plaintiff. Defendants’ witnesses might have given such testimony of “ actual knowledge ” as to render it proper to afford defendants a further opportunity to produce the official records. The “ notice or actual knowledge ” referred to in subdivision 3 of section 17 of the National Bankruptcy Act (30 U. S. Stat. at Large, 550, § 17, subd. 3, as amd. by 42 id. 354, chap. 22) was a matter which might have been proved by admissions or other proof and without the records from the bankruptcy court. Judgment reversed and a new trial ordered, with thirty dollars costs to appellants to abide the event.

All concur; present, Guy, Gavegan and Mitchell, JJ.

Judgment reversed and new trial ordered.

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Per Curiam.

The defense should not have been stricken out. It was error to assume that defendants would fail, in their proof and to refuse to hear their witnesses. That a composition had been confirmed in the bankruptcy court had been indicated by the testimony of plaintiff’s witness and that of counsel for plaintiff. Defendants’ witnesses might have given such testimony of “ actual knowledge ” as to render it proper to afford defendants a further opportunity to produce the official records. The “ notice or actual knowledge ” referred to in subdivision 3 of section 17 of the National Bankruptcy Act (30 U. S. Stat. at Large, 550, § 17, subd. 3, as amd. by 42 id. 354, chap. 22) was a matter which might have been proved by admissions or other proof and without the records from the bankruptcy court. Judgment reversed and a new trial ordered, with thirty dollars costs to appellants to abide the event.

All concur; present, Guy, Gavegan and Mitchell, JJ.

Judgment reversed and new trial ordered.

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Bluebook (online)

123 Misc. 303, 205 N.Y.S. 169, 1924 N.Y. Misc. LEXIS 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/s-denier-son-inc-v-suderman-nyappterm-1924.