People ex rel. Stryker v. Stryker

By the Court, S. B. Strong, P. J. There is no evidence that the relator is a creditor of the insolvent debtor, or that she has any interest which has been or can be affected by his discharge. For that reason I should feel inclined to quash the certiorari in this case, as having been improvidently issued. Courts ought not to be invoked, except to protect the actual interests of the moving party, or the rights of the public. ¡Neither appears to have been invaded in this instance. Upon the principal question, involving the merits, I concur in the opinion expressed by Judge Emott, when the case was before him at special term. It is undoubtedly true that a compliance with the provisions of the article of the revised statutes relative to voluntary assignments made pursuant to the application of an insolvent and his creditors, is a condition precedent to the discharge of a,n insolvent debtor from his debts. [655] And it is apparent, from the papers, that the true cause and consideration of the alleged indebtedness of the insolvent debtor to his principal creditor are not set forth in the schedule annexed to the petition, as the article of the revised statutes to which I have referred requires. But that was a matter proper for the consideration and determination of the judge who heard the petition. The creditors had the notice required by the statute, to show cause why an assignment of the insolvent’s estate should not be made, and he be discharged from his debts. If they neglected to appear and raise objections, they should be concluded, if the officer had the requisite jurisdiction ; except as to matters which the statute declares shall avoid the discharge. The judge having in effect decided that the insolvent had complied with the provisions of the statute relative to his schedule, the question as to any omission in that is no longer open. The same is true as to the omission in the affidavit of the creditor, and the want of a certificate that the assignment had been recorded in the office of the county clerk. The statute, in providing expressly that certain acts or omissions, or any fraud, shall vitiate the discharge, strongly implies that the decision of the judge who hears the application shall be conclusive as to other matters. It is right that it should be so, as otherwise these discharges might be set aside for the omission of the most trifling matter, which might be considered as a condition precedent. [Orange General Term, July 14, 1857. The judgment rendered at the special term should be affirmed, and the certiorari should be puashed. S. B. Strong, Birdseye and Emott, Justices.]