In re Minsky
Decision Date | 15 July 1942 |
Citation | 46 F. Supp. 104 |
Parties | In re MINSKY. |
Court | U.S. District Court — Southern District of New York |
Emil H. Wasserberger, of New York City, for judgment-creditor.
Frank E. Weiss, of New York City, for bankrupt.
This is a motion by Sidney Stone, a judgment-creditor of the bankrupt, for an order vacating and setting aside an ex parte order of this court, dated May 12, 1942 enjoining him from taking any steps except in bankruptcy to collect his judgment.
The judgment-creditor contends that the judgment for $6,474.50, which he obtained against the bankrupt on February 14, 1940 in the New York Supreme Court, was predicated upon the bankrupt's wrongful act in maliciously and willfully inducing the breach of a contract which Stone had with another party and is not a debt dischargeable in bankruptcy.
The bankrupt contends that the judgment was rendered against him by default; that it does not appear from the papers presented in support of this motion just what theory the judgment was based upon; and that the basis for the judgment was probably a breach of contract with no malice or willful misconduct.
If the liability is for willful and malicious injury to the person or property of another, it comes within the exception and is not a debt dischargeable in bankruptcy. Bankruptcy Act § 17, sub. a (2), 11 U.S.C.A. § 35, sub. a (2), and the stay should be vacated.
To determine the character of the action reference must be had to the pleadings upon which the judgment was rendered. In re Wegner, 7 Cir., 88 F.2d 899; Swift & Co. v. Bullard & Son, D.C., 3 F.2d 814. Paragraphs thirteenth and fourteenth of the complaint read as follows:
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...against bankrupt was dischargeable in bankruptcy, reference must be had to pleadings upon which judgment was rendered. (In re Minsky, D.C.N.Y.1942, 46 F.Supp. 104, 49 Am.Bankr.Rep.N.S. In order for court to ascertain character of liability merged in judgment, for purpose of determining whet......
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