Price v. Peters
New York Court of Common Pleas
Appeal from an order. This action was brought by George Price against Henry Peters and J. A. Ingram, in one of the Hew York district courts, and judgment recovered by the plaintiff, upon two promissory motes made in September, 1860, for $142.64. Supplementary proceedings were instituted, under which Peters was partially examined: he declined to answer certain questions, whereupon plaintiff moved for an attachment, with the view of punishing him for a contempt.
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Appeal from an order. This action was brought by George Price against Henry Peters and J. A. Ingram, in one of the Hew York district courts, and judgment recovered by the plaintiff, upon two promissory motes made in September, 1860, for $142.64. Supplementary proceedings were instituted, under which Peters was partially examined: he declined to answer certain questions, whereupon plaintiff moved for an attachment, with the view of punishing him for a contempt. Pending this motion, defendant Peters moved that all proceedings on the part of the plaintiff be perpetually stayed. The grounds of…
1Opinion of the Court
By the Court.*—Daly, F.
J.—A discharge under the Two-third Act must be pleaded as a defence to the action if the party had an opportunity of doing so; and if he had, and neglected to interpose it, the court will not afterwards, upon motion, relieve him against the judgment. (Mechanics’ Bank a. Hazard, 9 Johns., 392; Desobry a. Morange, 18 Ib., 336; Valkenburgh a. Dederick, 1 Johns. Cas., 133.)
The defendant Peters having obtained his discharge after issue joined, and before the cause was decided, should have applied to the justice under the 11th subdivision of the 61th section of the Code, for…
2Cases cited5 opinions
- Palmer v. HutchinsNew York Supreme Court · 1823
- Jackson ex dem. Colden v. RichNew York Supreme Court · 1810
- Parkinson v. ScovilleNew York Supreme Court · 1838
- Mechanics' Bank v. HazardNew York Supreme Court · 1812
- Valkenburgh v. DederickNew York Supreme Court · 1799