Colwell v. Tinker

• Citation: 62 N.E. 668,169 N.Y. 531
• Parties: COLWELL v. TINKER.
• Decision Date: 31 January 1902
• Court: New York Court of Appeals

169 N.Y. 531

62 N.E. 668

COLWELL

v.TINKER.

Court of Appeals of New York.

Jan. 31, 1902.

Appeal from supreme court, appellate division, First department.

Action by Frederick L. Colwell against Charles A. Thinker. From an order of the appellate division (72 N. Y. Supp. 505) affirming an order of the special term denying the prayer of defendant to have the judgment recovered against him canceled of record, defendant appeals. Affirmed.Nelson Smith, for appellant.

Thomas McAdam, for respondent.

BARTLETT, J.

The respondent recovered in the supreme court a judgment against the appellant on the 9th day of February, 1897, which was entered in the clerk's office of the county of New York, for $50,653.98 damages and costs, in an action for criminal conversation with his wife. On the 13th day of September, 1899, the appellant was adjudicated a bankrupt on his own petition by the district court of the United States for the Southern district of New York. On the 2d day of February, 1890, the appellant was duly discharged. Section 17 of the bankruptcy act reads in part as follows: ‘A discharge in bankruptcy shall release a bankrupt from all his probable debts except such as * * * (2) are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another.’ Section 1268 of the Code of Civil Procedure provides, in substance, that at any time after one year has elapsed since a bankrupt was discharged from his debts pursuant to the acts of congress relating to bankruptcy, he may apply, upon proof of his discharge, to the court in which the judgment was rendered against him for an order directing the judgment to be canceled and discharged of record. If it appears upon the hearing that he has been discharged from the payment of that judgment, or the debt upon which it was recovered, an order must be made directing that it be canceled and discharged of record. When the bankrupt applied for his discharge to the United States district court, the respondent challenged the jurisdiction of the court on the ground that the only debt appearing in the schedules of the bankrupt was the judgment referred to in the action for criminal conversation, and, as that could not be discharged by proceedings in bankruptcy, the court was precluded from granting the discharge, as there was nothing for it to operate upon. The learned district judge, in sustaining the exception to this objection, held that the ordinary course of procedure in adjudging discharges is to grant the application if the bankrupt is otherwise entitled to the discharge without determining in any way the effect of its releasing any particular debt, whether contained in the schedules or not, and thereupon the discharge was granted. After the expiration of one year from the time of the discharge of the bankrupt, he applied for the cancellation of the judgment under section 1268 of the Code. The special term denied the motion on the ground that the judgment was recovered for willful and malicious injuries to the person and property of another. The appellate division affirmed this order, but with leave to appellant to renew the application upon such additional papers as may be advised. This leave to renew was based upon the view entertained by the learned court that nothing was before them to show upon what the verdict against the appellant was based except a general allegation that it was an action for criminal conversation, and that the real nature of the action could not be determined unless the judgment record was before the court, as an action for criminal conversation does not necessarily involve malice against the plaintiff. It is therefore important to determine what is implied by a judgment entered upon the verdict of a jury finding the defendant guilty of criminal conversation with the plaintiff's wife. Section 3343 of the Code (subdivision 9) defines a ‘personal injury’ to be, among other things, criminal conversation. As this is a mere legislative definition of a personal injury, for the guidance of the courts in this state, it may be regarded for the purposes of this discussion as of no binding force in the determination of the federal question now presented. It is very clear upon principle and authority that criminal conversation is a willful and malicious injury to both the person and the property of the husband. In the recent case of In re Freche, 5 Am. Bankr. R. 479, 109 Fed. 620, the United States district court of New Jersey held that a judgment in a father's action for the seduction of his daughter, under the law of New Jersey, is one for the willful and malicious injury to the person and property of another, within the...