
    Frederick L. Colwell, Respondent, v. Charles A. Tinker, Appellant.
    
      Discharge in bankruptcy — criminal conversation — malice may or may not be involved therein.
    
    An action for criminal conversation may, but does not necessarily, involve malice against the plaintiff, and a person discharged in bankruptcy is not entitled to have canceled of record a judgment recovered against him, before his discharge, in an action for criminal conversation with the wife of the judgment creditor, where the bankrupt alleges that the judgment was not recovered for a willful and malicious injury and the judgment creditor alleges that it did involve such an injury, and the judgment record is not before the court so that the real nature of the action can be determined.
    Appeal by the defendant, Charles A. Tinker, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of August, 1901, nwnc pro fame as of July 1, 1901, denying the defendant’s application to cancel and discharge of record the judgment entered against him in the above-entitled action.
    
      Nelson Smith, for the appellant.
    
      Thomas Mo Adam, for the respondent.
   Per Curiam :

.By the order from which this appeal is taken an application made by the defendant to vacate a judgment under the provisions of section 1268 of the Code of Civil Procedure was denied. That application was made upon a petition presented by the defendant, in which he set forth that on the 13th day of September, 1899, he was duly adjudged a bankrupt by the District Court of the United States for the southern district of New York, and that such proceedings were subsequently had thereupon that on the 2d day of February, 1900, by an order and judgment of that court, he was discharged from all debts and claims which were made provable against his estate and which existed on the 13th day of September, 1899. He further represented in his petition that the only debt or demand against him mentioned in his petition in bankruptcy was one arising upon a judgment recovered by the plaintiff in this action; and he also set forth “ that the said judgment was not recovered against your petitioner for a wilful and malicious injury to the person or property of the said Frederick L. Colwell, within the meaning” of the Bankruptcy Law; but he also stated that the action in which such judgment was recovered was one brought against him for criminal conversation with the wife of the judgment creditor, and that the judgment was for the sum of $50,000 and costs, and was entered on the 9th day of February, 1897, in the office of the clerk of the city and county of New York.

It appears in the record that Colwell, the plaintiff herein, appeared in the defendant’s bankruptcy proceeding and objected to a discharge being granted, and, in his objections filed, stated that he was the judgment creditor of the bankrupt, the owner of the judgment for $50,000 and costs, and that such judgment was recovered on a cause of action charging the said bankrupt with criminal conversation with said creditor’s wife, and that such cause of action involved a willful and malicious injury to the person or property of another and, therefore, was not discharged by the Bankruptcy Law.

It is provided by section 17 of the Bankruptcy Act (30 U. S. Stat. at Large, 550), in effect, that a discharge in bankruptcy does not release the bankrupt from judgments in actions for willful and malicious injuries to the person or property of another. By the Code of Civil Procedure of the State of New York (§ 3343, subd. 9) a personal injury is defined as including libel, slander, criminal conversation, seduction and malicious prosecution ; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff or of another.

The test of the defendant’s right to have the judgment vacated under the provisions of section 1268 of the Code of Oivil Procedure depends upon its not having been recovered for a personal injury willfully and maliciously inflicted. We have nothing before ns to show upon what the judgment against this appellant was based, except a mere general allegation that it was in an action for criminal conversation. The moving party insists it was not for a willful and malicious injury, but the opposing party as strenuously contends that it was based upon such an injury. We cannot determine the real nature of the action upon the simple characterization that each party has given it. In order that its real nature may be known, the judgment record should be presented to the court. An action for criminal conversation does not necessarily involve malice against the plaintiff, but that element may be involved, and before a determination can be had upon the subject the judgment record should be before the court.

For this reason the order appealed from should be affirmed, with ten dollars costs and disbursements, but with leave to the appellant to renew his motion to vacate the judgment upon proper and sufficient papers.

Present—Van Brunt, P. J., Patterson, O’Brien, Ingraham and Laughlin, JJ.; Ingraham, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements, but with leave to appellant to renew his motion to vacate judgment upon proper papers.  