
    Mark L. McDonald, Resp’t, v. Erwin Davis, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed May 3, 1887.)
    
    1. Bankruptcy—Effect of discharge in, upon judgment—U. S. Stat., § 5105.
    A discharge in bankruptcy is a perfect defense to an action on a judgment founded upon a debt which existed at the time the bankruptcy proceedings were commenced, which debt was provable, and was in fact proved, in the bankruptcy proceedings.
    2. Same.
    The discharge operates only when pleaded like the defense of a release or payment, and it must exist in order to be pleaded, and, as the discharge had not been granted before judgment was entered, it was competent to interpose it, as a shield to any proceedings taken to enforce the judgment, by asking for a perpetual stay upon the execution, or as an answer to any action brought upon the judgment.
    8. Same.
    An order in the bankruptcy court in California, vacating the stay procured by defendant and permitting plaintiff to proceed, had no effect, by way of limitation, upon the subsequent discharge of defendant, and such stay could be properly pleaded in this action.
    
      Appeal from supreme court, general term, first department.
    
      Joseph H. Choate and Henry A. Boot, for app’lt; Edmund Randolph Robinson, for resp’t.
    
      
       Reversing 26 Hun, 23
    
   Peckham, J.

The judgment sued on herein was obtained in the state of California against defendant, intermediate the commencement by him of voluntary proceedings in bankruptcy in that state, and the granting of the discharge therein. The judgment was founded upon a debt which existed at the time the bankruptcy proceedings were commenced, which debt was provable, and was in fact proved, in the bankruptcy proceedings.

Under the bankrupt act of 1841, this court held that a discharge in bankruptcy operated upon such a judgment. Clark v. Rowling, 3 N. Y., 216. The ground upon which that decision rested was that although, technically, a judgment upon a contract merged the original debt, yet it did not do it so completely that the court could not look behind the judgment to see upon what it was founded, for the purpose of protecting the equitable rights of the parties in their original relations to each other. It was said that in such a case a judgment, instead of being regarded strictly as a new debt, was to be looked upon as the old debt in a new form, so as to prevent a technical merger from working injustice.

The learned counsel for the plaintiff claims, however, that there are some provisions of the late bankrupt law which differ in such a material degree from those of the law of 1841 as to call for a different disposition of the case. It is urged that in the act of 1841 there was no provision for a stay of proceedings in an action prior to the discharge in bankruptcy, and hence a judgment obtained prior thereto should be discharged by the certificate; while in the later act there is an express provision for such a stay, and a defendant has a legal right to it. The argument, then, is that if, having the legal right to a stay, he does not procure it, or, having once procured it, if it have been vacated by reason of his own neglect, the judgment then obtained ought to merge the debt, and escape the force of the dis- . charge in bankruptcy.

Although it does not appear that this precise argument has been heretofore used for the purpose of permitting such a judgment to remain notwithstanding the discharge, still the question of the effect of such discharge, under the later bankrupt act, upon a judgment obtained under similar circumstances to the one in suit, has been decided, and we do not think it wise to open the door to further discussion here. Monroe v. Upton, 50 N. Y., 593-597. That case detided the question in the same way as Clark v. Rowling (supra). Nothing said or decided in Revere Copper Co. v. Dimock (90 N. Y., 33) affects this question. The judgment in that case was subsequent to the discharge, and the court simply held that the determination, by the judgment, of the existence of a debt on that day, was conclusive, and the prior discharge could not be set up to dispute the absolute verity which the judgment imported. The cases of Clark v. Rowling and Monroe v. Upton (supra), were cited with approval, and distinguished from the one then under discussion. The case went to the supreme court of the United States, where the judgment was affirmed; the court holding that, as the discharge had been obtained before the entry of the judgment, application to the court should have been made for leave to plead it as a defense, and as that was not done, the judgment was valid like any other judgment in an action where a good defense existed, but had not been pleaded, and that such defense could not thereafter be set up in an action on the judgmerff Dimock v. Revere Copper Co., 117 U. S., 559-565. There is nothing in the case of Hill v. Harding (107 U. S., 631; 2 Sup. Ct. Rep., 404) which impairs the authority of the two cases in this court already referred to, and we must still adhere to the law as therein decided, although the courts of some other states may have taken a different view of the question.

Of course the discharge operates only when pleaded like the defense of a release or payment, and it must exist in order to be pleaded; hence the answer to the plaintiff’s claim that the supreme court of California was the only tribunal to which to apply for leave to set up the discharge. If the discharge had been in existence before judgment was entered, undoubtedly that tribunal would have been the one to apply to for leave to set it up as a defense to the action. As it had not been granted at that time, it was then competent to interpose it as a shield to any proceeding taken to enforce the judgment by asking for a perpetual stay upon the execution, if one were issued, or by setting it up as an answer to any action brought upon the judgment. This is all, as I understand the cases, that has been decided by any court of this state, or by the supreme court of the United States.

The next question is as to the construction and effect of the order in the bankruptcy court in California vacating the stay which defendant had procured, and permitting plaintiff to proceed with his case the same as if never restrained, and, in case he obtained judgment therein, permitting him to' take any other proceedings that the law and practice of the state court allowed. We think this older had no effect by way of limitation upon the subsequent discharge of defendant, and that it could therefore be properly pleaded, and its full legal force insisted upon,'in this action. The order simply took away from the defendant the protection of the statute while he was obtaining his discharge; leaving the plaintiff at liberty, if he could, to obtain judgment, and issue execution thereon, and enforce payment of his debt before the discharge was obtained.

This is, or might be, in many cases, a most desirable privilege to a plaintiff; while the defendant, by his negligence, is deprived of his ficedom from harassing litigation during the bankruptcy proceedings, which he otherwise would be entitled to, and which was one of the reasons for the provision granting a stay. Hill v. Harding (supra). As we think this to be the true construction of the order, it is unnecessary to examine the question of its legality, provided it were construed, as the court at general term did, as in effect a dismissal of the bankrupt proceedings as to the plaintiff, grounded upon the assumed right to dismiss them altogether, as to everybody, because the defendant had not applied to be discharged within one year after his adjudication as a bankrupt, there being, as alleged, no assets in the hands of the assignee.

The court should have granted the motion of defendant to direct a verdict for him on the ground of the discharge in bankruptcy being a perfect defense to the action.

The judgment should, therefore, be reversed and a new trial ordered, costs to abide event.

All concur.  