
    Louis Stefanini, Appellant, v. Louis Sroka, Respondent.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Bankruptcy Law of 1898 — A discharge does not release the bankrupt from a judgment recovered against him for damages for a malicious injury to the property of another.
    A judgment recovered in an action against a defendant upon allegations that he willfully and maliciously injured the plaintiff’s property cannot lawfully he discharged and canceled of record by an order of a State court upon his presentation of his subsequent discharge in bankruptcy, as subdivision 2 of section 17 of the Bankruptcy Law of 1898 declares that a discharge shall not release, such a liability.
    Appeal by the'plaintiff from an order of the Oity Court of'the city of ¡New York, granting the defendant’s motion to discharge and cancel of record the judgment, recovered by the plaintiff in this action, on the ground of the defendant’s discharge in bankruptcy.
    Palmieri & Wechsler, for appellant.
    Pavey & Moore (Walter J. Moore, of counsel), for respondent.
   Ebeedmait, P. J.

Upon a complaint to recover damages for willful and malicious injury to the plaintiff’s property by the defendant, the plaintiff, upon the defendant’s failure to appear- at the trial, had a verdict upon which judgment was duly entered for $2,200.55. The defendant thereafter filed a voluntary petition in bankruptcy in the United. States District Court upon which, in due course, he was discharged from the payment of his debts and liabilities as provided by the Bankruptcy Act. Upon such discharge he then moved in the City Court that the judgment recovered in this action against him be discharged and canceled of record, which motion, although first denied, was granted after reargument upon the supposed authority of Burnham v. Pidcock, 58 App. Div. 273. An examination of that case discloses that it has no application to the case at bar., It decided that the fraud, spoken of in subdivision 2 of section 17 of the Bankruptcy Act, means an actual and not merely a constructive fraud. ETo such question is in the case at bar which is controlled by a different provision of the same act, namely, that by his discharge a bankrupt shall not be released from a judgment for willful and malicious injuries to the property ■of another. The record clearly shows that the judgment in this case was recovered upon allegations charging that the .acts of the defendant were unlawful, wrongful, wicked and malicious. Such a judgment is expressly excepted from the benefits to be derived from a discharge. The defendant’s motion was, therefore, erroneously granted.

The order must be reversed, with costs and disbursements, and the defendant’s motion denied, with costs.

Levextbitt, J., concurs.

GtEvEestbaum, J., taking no part.

Order reversed, with costs and disbursements, and. defendant’s motion denied, with costs.  