Wheeler v. Emmeluth

12 N.Y.S. 58, 65 N.Y. Sup. Ct. 369, 34 N.Y. St. Rep. 775, 58 Hun 369, 1890 N.Y. Misc. LEXIS 3552

Opinion

Pratt, J.

The principal defect urged against the insolvent discharge is that in the list of creditors appeared the name of Thomas Wheeler, whereas, properly, the name of Obed Wheeler, as administrator of Thomas, should have been entered. There is no reason shown to suppose that at the time of making the application the petitioner was aware of the death of his creditor, which was then recent. Not every omission or error will make insolvent proceedings void. If honestly prosecuted, the inclination and duty of the court will be to disregard errors that have not caused injury. The brief of the appellant states that one of the judgments canceled by the special term order was entered in a justice’s court, and that, being docketed in the county clerk’s office, it became a judgment of the county court, and that the motion for discharge should be addressed to that tribunal. But the petition avers the judgment was entered in the supreme court on February 24,1876. The opposing affidavit does not deny that such a judgment was entered, and the order appealed from directs the cancellation of such judgment. If it be true that a judgment was entered on the 23d of February, 1876, in a justice’s court, it is not aimed at or affected by this proceeding. It may well be that, to cancel that judgment, resort should be had to the county court. Order appealed from affirmed, without costs.