Lee v. Phillips

Decided December 15, 1843

New York Supreme Court · decided 1843-12-15

While this action of assumpsit was pending, and on the 30th of March last, the defendant obtained his discharge under the bankrupt act. On the 15th of May, the plaintiff entered the defendant’s default, perfected judgment, and subsequently issued execution.

Decided 1843-12-15

By the Court, Bronson, J.

¶1We never give effect to the discharge on motion where the defendant might have pleaded it; *247and here it might have been pleaded, (a) But we can relieve the defendant by setting aside the judgment oh payment of costs, and allowing him now to plead the discharge. If he does so, the plaintiff will then be entitled to discontinue without costs.

¶2Ordered accordingly.

¶3See Graham v. Pierson infra and the cases there cited in note (b).