
    Simeon Robens, App’lt, v. Irving Sweet, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    1. Supplementary proceedings—Motion to set aside—Debtor’s discharge UNDER TWO-THIRDS ACT CONCLUSIVE.
    On a motion to set aside proceedings supplementary to execution to examine a judgment debtor, on the ground that subsequent to the recovery of the judgment, the debtor had been discharged therefrom under the “two-thirds act” (Code Civ. Pro., art. 1, tit. 1, chap. 17), the debtor’s discharge is conclusive, and its validity cannot be tried.
    2. Same—Appeal from order.
    An order denying the motion to set aside the order to examine, and appointing a referee to try the validity of the discharge is appealable.
    
      J. F. Conkey, for appl’t; C. R. Patterson, for resp’t,
   Learned, J.

This is an appeal from an order denying a motion to set aside proceedings supplementary, to examine the plaintiff, who was the judgment-debtor. One ground of the motion, and the only one we need to consider is that, subsequently to the recovery of the judgment, the debtor had been discharged therefrom, under art. 1, tit. 1, chap. 17, Code Civil Procedure; formerly known as the “two-thirds act.”

That proceedings under that article were taken and that-a discharge thereunder was granted are facts not disputed. But the judgment-creditor avers fraud in the proceedings.

The judge denied the motion to set aside the proceedings supplementary, for the present, and ordered a referee to take proof and report as to the alleged fraudulent transaction. The plaintiff, who was the judgment-debtor, appeals.

The defendant insists that an appeal will not lie because there has not been a final decision; that the matter is still pending before the judge, who may finally decide in plaintiff’s favor.

But we think that general principle is not applicable? The plaintiff shows a discharge, and insists that on this motion that discharge is conclusive. The court holds that it is not conclusive, by denying the motion; and then proceeds by a reference to examine the question of fraud. If the plaintiff is right in the position that on such a motion the discharge is conclusive, and that the question of fraud cannot be investigated ; then the refusal of the judge to set aside the proceedings makes the plaintiff an aggrieved party who may appeal.

The plaintiff, for the present, says, practically, admit the alleged fraud to be true, it cannot be considered on the motion to set aside these proceedings supplementary. If he is right then the denial of the motion was erroneous.

In Rich v. Salinger (11 Abb. Pr., 344), on a motion to set aside an execution, it was held to be improper to try the validity of the debtor’s discharge under the two-thirds act. See cases there cited.

The same was held in Russell v. Irwin Manufacturing Company (10 Abb. Pr., 258, note).

The same general view is taken in Trumbull v. Healy (21 Wend., 670), though not a similar motion.

In Dresser v. Shufeldt (7 How. Pr., 85), a judgment had been recovered. Subsequently the debtor obtained a discharge under the insolvent act. After that an execution was issued. When a motion to set it aside was made the creditor claimed to show that the discharge was fraudulently obtained. The question was very carefully examined, and many cases were cited by Judge Mitchell. He held that the question of fraud could not be tried on affidavits and he set aside the execution. We find no cases to the contrary of these.

It is true, as the defendant urges, that if the discharge is a nullity and-void, it cannot bar defendant’s rights. The point is: Where .shall the question of nullity be tried?

The defendant, also, asserts that plaintiff did not get jurisdiction. We undertand that he does not claim that the discharge is invalid in its face; but that his affidavits show that he was not served with the order in the proceedings for discharge, pursuant to section 2165, subdivision 2. The language is that the petitioner must serve upon each creditor, * * * whose place of residence is known to

him.” The defendant’s affidavits are intended to show that he did not in fact reside at this place to which the order was mailed.

If this matter affects the validity of the discharge, it comes under the rule above stated in regard to alleged fraud.

We are of opinion, therefore, that plaintiff’s motion should have been granted; but without prejudice to any proper proceeding by defendant to test the validity of the discharge.

Order reversed, with ten dollars costs and printing disbursements and motion granted, with ten dollars costs. Such costs and disbursements only to be set-off against defendant’s alleged judgment. The reversal not to prejudice any proper proceeding by defendant.

Landon and Ingalls, JJ., concur.  