Bankruptcy

Joseph S. Kennah, Respondent, v. Daniel J. Hurley, Jr., Appellant

258 A.D. 771·New York Supreme Court, Appellate Division·1939·NY

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Opinion

Joseph S. Kennah, Respondent, v. Daniel J. Hurley, Jr., Appellant. [MAJORITY] Appeal from an order granting a summary judgment under rule 113 of the Rules of Civil Practice. The action was brought to recover the amount of a check. The answer raised the issue that defendant, the drawer of the cheek, had been discharged in bankruptcy from his debts, including that for which this action is brought. It appears that this plaintiff was not listed as a creditor, and that the debt was not discharged. Orders and judgment affirmed, with costs. Hill, P. J., Bliss and Foster, JJ., concur; Crapser and Heffernan, JJ., dissent, on the ground that the papers upon which the motion was granted did not meet the requirement of rule 113 of the Rules of Civil Practice, and on the further ground that upon all the papers in the case there was a triable issue of fact.