In the Matter of the Application of Charles Gruber, Appellant, for an Order Directing that a Certain Judgment Obtained against Him by Adolph Knobloch, Respondent, Be Canceled and Discharged of Record

In the Matter of the Application of Charles Gruber, Appellant, for an Order Directing that a Certain Judgment Obtained against Him by Adolph Knobloch, Respondent, Be Canceled and Discharged of Record. First Department, December 24, 1908. Judgment — bankruptcy — discharge of partner — cancellation of judgment on firm debt. Where a partner was not served in an action against his firm and no individual judgment was entered against him he is not entitled to a cancellation of the judgment on his discharge in bankruptcy where there was no adjudication in that proceeding as to the partnership debt. Appeal by the petitioner, Charles Gruber, 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 Hew York on the 14th day of April, 1908, denying the petitioner’s motion to cancel and discharge of record a certain judgment against him. Joseph Hirschman, for the appellant. Samuel M. Levy, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The order appealed from should be affirmed, on the ground that upon the record there is no judgment against the petitioner individually. It appears that an action was commenced against him and his partner for a copartnership debt; that his partner was served and a judgment was obtained against the party served, but the petitioner was not served and the clerk could only enter a judgment against the defendant served. (Code Civ. Proc. § 456.) Consequently there is no individual judgment against the petitioner. So far as appears, there was no adjudication in bankruptcy as to the copartnership, and the discharge was only an individual discharge and does not affect the judgment so far as it affects the copartnership property. It is only where a judgment has been rendered against a bankrupt that he can apply to have the judgment, discharged. (Code Civ. Proc. § 1268.) The order is, therefore, affirmed, with ten dollars costs and disbursements. Present — Ingraham, Laughlin, Clarke, Houghton and Soott, JJ. Order affirmed, with ten dollars costs and disbursements.