
    STEVENS v. KING.
    (Supreme Court, Appellate Division, First Department.
    April 15, 1897.)
    Bankruptcy—Evidence—Burden of Proof.
    Defendant, in order to avail himself of the defense of a discharge in bankruptcy, need not show that plaintiff had notice of the bankruptcy proceeding, since the burden is on plaintiff to show that the decree is not effectual.
    Appeal from judgment on report of referee.
    Action by James H. Stevens against William S. King on a note, draft, and stated account. There was a judgment for defendant, and plaintiff appeals. Affirmed.
    Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON, and PARKER, JJ.
    Allan Robinson, for appellant.
   VAN BRUNT, P. J.

This action was brought to recover upon a promissory note made in the year 1856, a draft made in the year 1857, and upon an account stated in 1877, and another account stated in 1888. The answer alleged payment of the note, draft, and the first account stated, and denied the account stated in 1888, and set up a discharge in bankruptcy obtained by the defendant on February 4, 1879. The issues raised by the pleadings were referred to a referee. The referee found the making of note and draft; the account stated in 1877; that there had been various payments on account thereof by the defendant and one Remington; that there was no account stated in July, 1888; that the defendant was discharged in bankruptcy as alleged in the answer; that no new promise has revived said debts or claims; and that the defendant was entitled to judgment, with costs. From the judgment thereupon entered this appeal is taken.

The main question necessary to be considered upon this appeal is the contention that the claim of the plaintiff was revived by the action of the defendant subsequent to his discharge in bankruptcy. The only question raised as to the bankruptcy discharge was that it was not admissible in evidence, because it was not shown that the plaintiff was a party to the bankruptcy proceedings and received notice thereof, but we are not aware of any rule of law supporting this contention. The burden was upon the plaintiff to attack the discharge, and show some cause why the decree of the court was not effectual. Conceding the discharge to be valid, the plaintiff claims that he has established by the evidence that the defendant never intended his discharge to operate against the plaintiff, and that subsequent payments were evidence of the facts, and that an account was stated as late as 1879,— long subsequent to the date prior to which the discharge operated. The fact that the defendant made payments subsequent to the discharge is sought to be proven by the admissions contained in a statement of account made by defendant January 1, 1889. The difficulty with the appellant’s position is that he cannot take the items out of this account which suit his purposes, and leave the balance. If he takes the account as an admission, he must take the whole; and, while • he might prove the falsity of any of the items therein contained, without such proof he must, if he uses the account at all, take it as it is. This account shows that the defendant owes the plaintiff nothing, and consequently it is not an admission of anything by which a liability was revived, or taken out of the operation of the bankruptcy discharge. It is true that the plaintiff swore to payments made on account subsequent to the discharge, but nothing took place by which it was in any way intimated that the defendant intended to renew his obligation notwithstanding his discharge. There was no proof of an account stated in 1879. There was some evidence of a balance-being struck in 1879 by the lawyers in the foreclosure suit, but there-is no evidence that the defendant participated in this accounting, or that he promised to pay any such sum; and consequently no liability could be predicated upon any such settlement, even if admissible under the pleadings. Upon consideration of the whole case, the facts of which it has been exceedingly difficult to determine, in consequence of the involved manner in which the evidence was introduced, there does not seem to be any reason for disturbing the referee’s conclusions..

Judgment affirmed, without costs. All concur.  