
    Sarah L. J. Tompkins, as Administratrix, etc., of John Tompkins, Deceased, Respondent, v. Charles L. Williams, Appellant, Impleaded with James Monroe, Defendant.
    Third Department,
    March 9, 1910.
    Bankruptcy—intentional and malicious injury—evidence—burden of proof.
    Where a judgment obtained by an administratrix is based upon the fact that chloral was administered to her intestate by the defendants; that they neglected to care for him properly as an intoxicated guest, and it is not claimed that they desired to injure or cause his death, the judgment is dischargeable in bankruptcy.
    The administration of chloral, being for the benefit of the intestate, was not a malicious or intentional injury within the meaning of the Bankruptcy Act.
    The burden is on the plaintiff to show that her judgment comes within the exception of the Bankruptcy Act so as to survive the discharge.
    Smith, P. J., and Cochrane, J., dissented in memorandum.
    Appeal by tbe defendant, Charles L. Williams, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 22d day of July, 1909, denying the said defendant’s motion to cancel and discharge a judgment and to set aside an execution issued thereon under section 150 of the Debtor and Creditor Law (Consol. Laws, chap. 12; Laws of 1909, chap. 17).
    
      Marvm c& Hanford \_E. II. Hanford of counsel], for the appellant.
    
      Williams c& Gonlon [Edwin D. Wagner of counsel], for the respondent.
   Kellogg, J.:

The plaintiff’s intestate met his death at an inn of" which ¿he wife of Williams and another were the proprietors and Williams and Monroe were bartenders and employees. The judgment in question is against Williams and .Monroe, and is based upon the fact that the intestate’s death was caused (1) by the administration of chloral to him by Williams, or (2) by the defendants neglecting to properly care for an intoxicated guest. From the evidence, "the pleadings and the charge of the court the verdict may have been placed upon either ground, and it is impossible to state upon which ground the recovery rests. It was a disputed question of fact whether chloral was administered by Williams.

Under section 17 of the Bankruptcy Act a discharge in bankruptcy releases, the bankrupt from all provable debts except certain liabilities, among which is liability for willful and malicious injuries to the person or property of another.” The plaintiff’s judgment was treated as a liability 'in the petition of the bankrupt, and due notice of all proceedings in bankruptcy was given to her as a. creditor.

The plaintiff’s cause of action is for an injury to her property rights. (Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 145.) If the act which eáused the death was malicious and willful, the judgment may survive the discharge in bankruptcy; otherwise not/ It was not claimed that the defendant desired to injure or to cause the death óf the deceased. If chloral • was* administered, it was intended for his benefit to render him quiet.; to prevent his making a disturbance and injuring himself or others. It was clearly but mistakenly intended for his. good. If chloral was not administered, then the recovery rests solely upon negligence. It was not, therefore, in either casé a malicious and intentional injury within the meaning of the Bankruptcy Act. There tyas no wrongful intent as distinguished from a mere legal wrong. (Allen v. Fromme, 195 N. Y. 404, 407; Kavanaugh v. McIntyre, 128 App. Div. 722, 724.) The plaintiff upon this motion is charged with' the duty of showing that her judgment comes within the exception which saves it from discharge in bankruptcy. That fact has not been established and it does not, therefore, survive.the discharge in bankruptcy. The order,should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.

All concurred, except Smith, P. J., dissenting in memorandum, in which Cochrane, J., concurred.

Smith, P. J. (dissenting) :

I agree with the learned judge at Special Term that under the charge the judgment in question must be deemed to have been procured for the act of the defendant in giving the plaintiff’s husband'chloral, and that it cannot from the record be said to be based upon mere negligence in caring for the plaintiff’s husband as a guest. It is certainly a radical holding that a saloon keeper may sell a man whisky'arid get him drunk and then give him chloral to quiet him, and when in so doing he kills him he has made an innocent mistake, and that a judgment recovered therefor is discharged in bankruptcy. The giving of the chloral was a willful and wrongful act, and in my judgriient must be deemed malicious (Colwell v. Tinker, 169 N. Y. 537); and plaintiffs judgment for the death of her husband, caused by such act, should remain a liability against the defendant until paid.

Cooheane, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.. 
      
      See 30 U. S. Stafc. at Large, 550, § 17, as amd. by 32 id. 798, § 5.— [Rep.
     