Stuart v. Salhinger

14 Abb. Pr. 291

Opinion

By the Court.

Footnotes

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*—Daly, F. J.

an execution has been issued and a levy made, I see no objection to pursuing the course that was adopted in the case of Cramer (3 Sandf. 700); that is, where a motion is made to set the levy aside, or for a perpetual stay of proceedings, and the plaintiff in answer to the motion sets up that the discharge was improperly procured, and shows by affidavit on his part that there is ground for so believing, to retain the lien acquired by the levy, and order issues to be framed, that the question may be tried by a jury. All that had been decided previously was, that the court will not try the question of the validity of the discharge upon affidavit. (Russell a. Packard, 9 Wend., 431; Reed a. Gordon, 1 Cow., 50; Reynolds a. Manning, Ib., 228 ; Noble a. Johnson, 9 Johns., 259; Lester a. Thompson, 1 Ib., 300; Taylor a. Williams, 20 Ib., 21; Cole a. Stafford, 1 Cai., 249.) And there is nothing in the mode of procedure adopted in Cramer’s case in conflict with the previous decisions.

The statute declares that the discharge shall he void in certain cases. It provides that the discharge may be pleaded in bar of any action for a debt due at the time of the assignment, or contracted before, though payable afterwards; but it does not follow from this that the only mode in which the question of the invalidity of the discharge can be raised, where the debt is in judgment, is by an action upon the judgment. In Deyo a. Van Valkenburgh (5 Hill, 242), an action of false imprisonment was brought for arresting the defendant in the judgment upon a ea. sa., after he had been discharged upon the Two-thirds Act; and it was conceded by the court, that the defendant in the, action might set up by way of defence, that the discharge was void for any of the reasons specified in 2 Bev. Stat., §§ 23, 35. It was said in' this case, that the refusal to try such a question upon affidavits was referable “ to a rule of practice which distrusts the force of such proof, and turns the party over to a more satisfactory mode of examining the question.” This is attained by ordering issues to be framed, where it presumptively appears that the discharge may be successfully assailed, and directing them' to be tried before a court and jury. If the creditor has a j udgment, and the discharge is void for any of the causes specified in the statute, there is no reason why he should be delayed in collecting his debt, and turned over to an action upon his judgment. He levies at the peril of having the discharge interposed, either in the form of an action against him for trespass, or in an application to the court to set aside the levy, which will be granted, unless he can satisfy the court that he ought to be allowed to go on, and establish the invalidity of the discharge. If he satisfies the court upon this point, the question can be tried as effectually in the mode provided by the order of Judge Brady, as by an action upon the judgment. The rights of the defendant are as fully protected by proceeding in this way as by resorting to the remedy by action; while, if the plaintiff succeeds in overturning the dis charge, he has been, as he ought to be in such a case, unobstructed in enforcing his judgment. If the discharge has been improperly procured, the debtor ought not to have any advantage from it; and though the presumption should be in his favor from the fact of his obtaining it, that presumption should not be carried to the length of compelling the creditor to bring an action upon his judgment to test the validity of the discharge, when a less dilatory, less expensive, and equally efficacious mode can be resorted to. It does not lie with the debtor to complain that his goods are levied upon, for if his discharge is valid, he has the same remedy against the plaintiff that he would have against any other trespasser; or if he does not wish to bring an action, he can have the levy discharged by a motion to the court, if there was no ground whatever for making it. The order below should be affirmed.

Present, Daly, F. J., Hilton and Brady, JJ.