discharge bar in New York

1981After Local Loan Co. v Hunt, supra, it could no longer be denied that the Bankruptcy Court possessed jurisdiction, under limited circumstances, to determine whether the bankrupt's discharge was a bar to a provable debt ( In Re Devereaux, 76 F.2d 522 [2d Cir, 1935]).

1966In the course of the opinion the court said that the creditor has two remedies to pursue, ‘ (He) might have objected to the bankrupt’s discharge before it was granted * * * or, it might have brought suit * * * in an appropriate Kentucky court with an opportunity to the bankrupt to plead the discharge as a bar to the action.- See In re Devereaux, 2 Cir., 76 F. 2d 522 .’ “ In Hisey v. Lewis-Gale Hospital, D.

1874Without any consideration of the question on which the courts below and the court in Massachusetts in Carpenter v. Turrell ( 100 Mass., 450 ), are at variance, it is quite certain that the effect of this defence if interposed, will be to deprive the plaintiffs of a fair and honest advantage, they had obtained by their diligent pursuit of legal means and remedies.

1874Without any consideration of the question on which the courts below and the court in Massachusetts in Carpenter v. Turrell ( 100 Mass., 450 ), are at variance, it is quite certain that the effect of this defence if interposed, will be to deprive the plaintiffs of a fair and honest advantage, they had obtained by their diligent pursuit of legal means and remedies.

1874(Monroe v. Upton, 50 N. Y., 593 .) So that the defendants are not without reasonable opportunity to present their discharge to the courts of this State, and obtain for it the effect to which it is entitled.

1874Again; a discharge is not a bar to an action in any stage without being pleaded ( Cornell v. Dakin, 38 N.Y., 253 ), and if the defendant is too late to plead, either originally or by amendment, the remedy it seems, is by motion for a perpetual *Page 241 stay of execution. ( Monroe v. Upton, 50 N.Y., 593 .) So that the defendants are not without reasonable opportunity to present their discharge to the courts of this State, and obtain for it the effect to which it is entitled.

1874Again ; a discharge is not a bar to an action in any stage without being pleaded (Cornell v. Dakin, 38 N. Y., 253 ), and if the defendant is too late to plead, either originally or by amendment, the remedy it seems, is by motion for a perpetual stay of execution.

1874Again; a discharge is not a bar to an action in any stage without being pleaded ( Cornell v. Dakin, 38 N.Y., 253 ), and if the defendant is too late to plead, either originally or by amendment, the remedy it seems, is by motion for a perpetual *Page 241 stay of execution. ( Monroe v. Upton, 50 N.Y., 593 .) So that the defendants are not without reasonable opportunity to present their discharge to the courts of this State, and obtain for it the effect to which it is entitled.

2002Thus, in Murphy , the Court rejected the plaintiffs assertion that the law imposes in every employment contract the requirement that the employer deal with its employees fairly and in good faith and that a discharge in violation of that implied obligation exposes the employer to liability for breach of contract ( 58 NY2d at 304 ).

2000An employee at will, such as petitioner, may be discharged (or, as here, demoted) without a hearing or a statement of reasons for the discharge, and that judicial review is limited to whether the discharge was in violation of constitutional, statutory or decisional law, or made in bad faith (see, Matter of Diaz v Goldman, 225 AD2d 344, 345-346 ).

1983Co., 96 Mise 2d 1070, 1075, affd 70 AD2d 791 ; Edwards v Citibank, N.A., 74 AD2d 553 ).

1981After Local Loan Co. v Hunt, supra, it could no longer be denied that the Bankruptcy Court possessed jurisdiction, under limited circumstances, to determine whether the bankrupt's discharge was a bar to a provable debt ( In Re Devereaux, 76 F.2d 522 [2d Cir, 1935]).

1981Until 1970, the primary function of the Bankruptcy Court was to determine whether the debtor was entitled to an adjudication discharging him generally from all his provable debts ( Glass v Miller Kearney, 577 F.2d 537 [9th Cir, 1978]).

1974Furthermore, the failure of the Human Resources Administration to object to a discharge does not bar them from subsequently asserting their claim as not affected by the discharge (Matter of Weitzman, 11 F. 2d 897 ; Matter of Galich v. Sibley, Lindsay & Curr Co., 59 Misc 2d 836 ).

1974Furthermore, the failure of the Human Resources Administration to object to a discharge does not bar them from subsequently asserting their claim as not affected by the discharge (Matter of Weitzman, 11 F. 2d 897 ; Matter of Galich v. Sibley, Lindsay & Curr Co., 59 Misc 2d 836 ).

1966(Matter of Lewensohn, 99 F. 73 ; Matter of Shepardson, 220 F. 186 ; Matter of Lewensohn, 104 F. 1006 ; Taylor v. Buser, 167 N. Y.

1966(Matter of Lewensohn, 99 F. 73 ; Matter of Shepardson, 220 F. 186 ; Matter of Lewensohn, 104 F. 1006 ; Taylor v. Buser, 167 N. Y.

1966C., 27 F. Supp. 20, 26 , in referring to such debts as are not released under the statute, the court said: ‘ It seems settled that a general discharge does not prevent a creditor from thereafter enforcing the liability if he can show the debt was of a non-dischargeable class.

1966(Matter of Lewensohn, 99 F. 73 ; Matter of Shepardson, 220 F. 186 ; Matter of Lewensohn, 104 F. 1006 ; Taylor v. Buser, 167 N. Y.

1959It is stated by the text writers that if the discharge of a joint claim by one of the obligees is made with intent to defraud his co-obligees and this fact is known to the obligor, the discharge is no defense in an action brought against him by the defrauded obligees to recover their equitable shares in the joint claim. (4 Corbin, Contracts, § 941-; 2 Williston, Contracts [rev. ed.], § 343; Restatement, Contracts, § 131, subd. [2].) Plaintiffs rely on the foregoing statement and on Rooks v. Stanaland ( 33 Ga. App. 8 ) and on Risk v. Hehl ( 215 Mich. 132 ) as author-" ities in support of their

1959It is stated by the text writers that if the discharge of a joint claim by one of the obligees is made with intent to defraud his co-obligees and this fact is known to the obligor, the discharge is no defense in an action brought against him by the defrauded obligees to recover their equitable shares in the joint claim. (4 Corbin, Contracts, § 941-; 2 Williston, Contracts [rev. ed.], § 343; Restatement, Contracts, § 131, subd. [2].) Plaintiffs rely on the foregoing statement and on Rooks v. Stanaland ( 33 Ga. App. 8 ) and on Risk v. Hehl ( 215 Mich. 132 ) as author-" ities in support of their

1903(Frey v. Torrey, 70 App. Div. 166 ; affd. on opinion below, 175 N. Y. 501 ; Crawford v. Burke, 201 Ill. 581 .) These views sufficiently answer the question certified as we have construed it.

1903(Frey v. Torrey, 70 App. Div. 166 ; affd. on opinion below, 175 N. Y. 501 ; Crawford v. Burke, 201 Ill. 581 .) These views sufficiently answer the question certified as we have construed it.

1903(Frey v. Torrey, 70 App. Div. 166 ; affd. on opinion below, 175 N. Y. 501 ; Crawford v. Burke, 201 Ill. 581 .) These views sufficiently answer the question certified as we have construed it.

1886Such claim ranks, as to such assets, above the Manning judgment, the same not having been recovered in the state of New Jersey, and being unentitled therefore to preference in that state (Cameron v. Wurtz, 4 McCord, 278 ; McElmoyle v. Cohen, 13 Pet., 312 ; Brown v. Public Administrator, 2 Bradf., 103 ).

1886Such claim ranks, as to such assets, above the Manning judgment, the same not having been recovered in the state of New Jersey, and being unentitled therefore to preference in that state (Cameron v. Wurtz, 4 McCord, 278 ; McElmoyle v. Cohen, 13 Pet., 312 ; Brown v. Public Administrator, 2 Bradf., 103 ).

1878It has been held by the Supreme Court of the United States, that such a discharge is not a bar to a debt due the United States, ■ upon the principle of the common law, that when a statute is general, and any right, title or interest would be divested or taken from the Icing, he shall not be bound, unless the statute is made, by express words, to extend hi him ( United States v. Herron, 20 Wall., 251 ); and the same principle was formerly applied to State statutes which took away any right or interest belonging to the people, unless the statute, in express terms, embraced them.

1868(Parkinson v. Scoville, 19 Wend. 150 ; 5 Gray, 539 .) Upon the recent decisions of the United States courts, I, however, assume this point in favor of the plaintiffs.

1860Williams, 20 Johns., 21 .) If the plaintiffs wished to test the validity of the discharge, they should have brought an action upon their judgment, when, upon the defendant’s plead ing the discharge in bar, they could go behind it and show that the officer had not acquired jurisdiction, or impeach it for any of the causes whicli would, under the statute, make it void.

1847(Lansing v. Prendergast, 9 John. 127 , and cases there cited.) The defendant’s assignee never took possession of the demised premises, nor does it appear in any other way that he ever elected to take the term.