¶1It is claimed upon the part of the appellant, who is the assignee of the judgment owned by her, that the injunction should not be granted, upon the ground that the judgment was entered for money received by the defendant in a fiduciary capacity, and embezzled by him. It appears from the judgment roll that the judgment was entered upon a promissory note, and whatever may have been the consideration for this promissory note is entirely immaterial, because, if there had been any fraud, out of which this consideration arose, by suing upon the note simply, the fraud was waived, *191and only the debt remained. And this .debt, having become merged in the judgment, comes within the operative force of the bankruptcy discharge. The order should be affirmed, with $10 costs and disbursements.
13 N.Y.S. 190
Mulock v. Byrne
Decided January 16, 1891
New York Supreme Court · decided 1891-01-16
Motion by James A. Byrne for an injunction to stay proceedings on a judgment obtained against him by Maria Mulock, on the ground of his discharge in bankruptcy. The judgment creditor opposed the motion on the ground that the debt for which the judgment was recovered was created by the defalcation of the defendant in a fiduciary capacity.
Decided 1891-01-16