Samuel Maas, Appellant, v. Frank Kuhn, Respondent

Samuel Maas, Appellant, v. Frank Kuhn, Respondent. First Department, January 8, 1909. Execution against salary — motion to vacate execution upon bankruptcy of debtor — discharge in bankruptcy or stay prerequisite to motion. A mere adjudication of bankruptcy does not operate to discharge a defendant, nor does it stay the prosecution of a claim. A motion to set aside an execution on a judgment debtor’s salary, levied under section 1391 of the Code of Civil Procedure, should be denied where the moving papers merely show that the debtor has been adjudged a bankrupt without alleging a discharge or stay of proceedings against him. The State courts may stay the prosecution or collection of those claims against a bankrupt which are released by a discharge, but until such stay is obtained creditors may prosecute -actions and enforce the collection of judgments, especially where the property levied upon is a portion of the current salary of the bankrupt and does not pass to his trustee in bankruptcy. Appeal by the plaintiff, Samuel Maas, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1908, vacating an execution issued against the defendant’s salary; * Frederick Klein, for the appellant. Ernest H. Wells, for the respondent. [MAJORITY — Houghton, J.:] Houghton, J.: The defendant is an employee of the city of New York, in receipt of a salary of more than twelve dollars per week. The plaintiff holds judgment against him, and obtained the issuance of an execution under the provisions of section 1391 of the Code of Civil Procedure directing application by the city of ten per cent of the defendant’s salary on such judgment. Within a month after the issuance of such execution the defendant filed a petition in bankruptcy and was adjudged a bankrupt. Thereupon the defendant moved to set aside the execution, which motion was granted. The moving papers do not disclose that the defendant has been discharged in bankruptcy, nor do they show that the bankruptcy court or this court has granted any stay of prosecution of actions against the bankrupt or stayed the collection of the plaintiff’s judgment. A mere adjudication of bankruptcy does not operate to discharge a defendant, nor does it operate as a stay against prosecution of a claim. If the claim be one from which a discharge in bankruptcy would be a release a stay of prosecution or collection under the provisions of section 11 of the Bankruptcy Act (30 U. S. Stat. at Large, 549) may be obtained on application to the State court. "Until such stay is obtained, however, parties have the right to prosecute action or enforce collection of judgments. (In re Geister, 97 Fed. Rep. 322.) Especially is this so where, as in the present case, the property levied upon is a portion of the current salary of the bankrupt which could not be applied to the payment of his general debts, and which would not pass to his trustee in bankruptcy. Until a stay of collection is obtained the plaintiff has a right to the continuance of his execution and the appropriation on his judgment of ten per cent of the defendant’s salary. The order appealed from should lie reversed, with ten dollars costis and disbursements, and the motion denied, with ten dollars costs, and the execution reinstated. Ingraham, McLaughlin, Clarke and Scott JJ., concurred. Order reversed, with ten- dollars costs and disbursements, and motion denied, with ten dollars costs, and execution reinstated.