Opinion
January, 1905.
Kenneson, Emley Rubino (Henry A. Rubino, of counsel), for appellant.
Dexter, Osborn Gillespie (H. Linsly Johnson, of counsel), for respondents.
Cancellation was sought and denied in the court below of a judgment obtained by the plaintiffs-respondents against the defendant-appellant and one Hirsch, composing the firm of the City Metal Works. The record discloses that the defendant-appellant upon his own application was in due course individually adjudicated a bankrupt, and as such discharged, but "in order to secure a discharge from firm debts there must be an adjudication of the firm as bankrupt, and a firm trustee appointed, where there are firm assets." In re Meyers, 3 Am. Br. Rep. 260, 261. That not appearing, nor made so to appear by the affidavit of the appellant "upon information and belief, that said claim was provable in the proceedings in bankruptcy, and your deponent was discharged therefrom by the discharge granted therein," the justice below properly denied his application, for it is only "If it appears upon the hearing that he has been discharged from the payment of that judgment, or the debt upon which such judgment was recovered, an order must be made directing said judgment be cancelled and discharged of record." Code Civ. Pro., § 1268.
Orders affirmed, with costs and disbursements.
DAVIS, J., concurs.
The motion was properly decided upon authority of In re Laughlin, 3 Am. Br. Rep. 1, and the other cases cited by the court below. Whether the appellant can now amend his proceedings so as to procure an effective discharge from the copartnership debts is a matter for consideration by the bankruptcy court.
Orders affirmed, with costs.