
    Charles F. Starr, App’lt, v. Charles Gordon Patterson, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Insolvency—Discharge.
    Where a motion to stay execution on the ground that the judgment debtor has been discharged in insolvency in another state is opposed on the ground that such discharge is invalid because of fraudulent omission of creditors’ names from the schedule, the court has power to order proof to be taken as to the facts.
    Appeal from order directing reference to ascertain the facts respecting the defendant’s discharge in insolvency.
    
      Payson Merrill, for app’lt; J. W. Lawton, for resp’t
   Van Brunt, P. J.

The defendant made a motion for a perpetual stay of execution upon a judgment obtained in this action, upon the ground that he had been discharged from his debts under the insolvency laws of Massachusetts, of which state both plaintiff and defendant were residents, and where the cause of action arose.

This motion was resisted upon the ground that the Massachusetts discharge was invalid by reason of the fraudulent omission of the plaintiff’s name from the defendant’s schedule of creditors; and also upon the ground that even if the evidence does not conclusively show such fact, it raises an issue on that point which by the well settled practice-of the courts of this state will not be disposed of on a motion, but should be made the subject of an action. The authorities cited by the plaintiff to substantiate the latter proposition certainly not only do not establish such a practice as the one claimed but put the plaintiff to his action.

It is difficult to see how issues can be framed on a motion, or how a defendant can bring an action to -establish the validity of his discharge.

This appeal is premature. The motion has not yet been decided, and unless the court was bound upon the papers before it to deny the defendant’s motion, which is apparently conceded by the plaintiff it was not, it had the power to order proof to be taken as to the facts.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.  