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Charles E. Collins, a Copartnership Doing Business as Charles Collins & Sons v. George J. Toombs, In the Matter of the Application of George J. Toombs, a Bankrupt. In the Matter of George J. Toombs, Judgment Debtor, against Charles E. Collins, a Copartnership Doing Business as Charles Collins & Sons, Judgment Creditors
On April 2, 1941, respondent was duly adjudicated a bankrupt in the District Court of the United States for the Northern District of New York. His schedule of debts in the bankruptcy proceeding asserted that he was indebted to appellants in the sum of $2,854. On December 4, 1941, respondent obtained an order discharging him from his indebtedness. The appellants filed objections to respondent’s discharge from bankruptcy contending that their debt was not one dischargeable in bankruptcy.
The Referee overruled their objections on the ground that the question of whether or not the debt should be discharged should be determined by the State courts. Thereafter appellants instituted an 974 action against respondent to recover the amount of their debt on the theory that respondent was guilty of fraud in procuring credit from them. Respondent filed an answer in that action. Appellants moved for an order striking out the answer and for summary judgment on the ground that there was no defense to the action.
Respondent defaulted on that motion and summary judgment was granted in favor of appellants amounting to $3,057.56. Thereafter an execution was issued against the body of respondent. Subsequently he moved to open his default and to vacate the judgment. That motion was denied and he appealed therefrom to this court. This court (271 App. Div. 160) affirmed the order. The court however held that the body execution was improper and vacated the same and directed that the judgment should stand as one on contract only.
Thereafter respondent applied to the Albany Special Term for an order canceling the judgment under the provisions of the Debtor and Creditor Law of the State of New York and from the order of cancellation appellants have come to this court. The case of Frey v. Torrey (70 App. Div. 166, affd. 175 N. Y. 501) upon which appellants principally rely to reverse the order under review is no longer the law in this State (Unite v. Birkett, 183 N. Y. 267; Crawford V. Burke, 195 U. S. 176).
On the record before us respondent was entitled to the order appealed from and it is affirmed, but, under the circumstances, without costs. All concur.