Opinion
Argued March 25, 1958
Decided May 1, 1958
Appeal from the Appellate Division of the Supreme Court in the first judicial department, WALTER A. LYNCH, J.
Wilbur G. Silverman for appellants. Copal Mintz for respondent.
Judgment was entered in plaintiffs' favor for $11,923.85 on September 30, 1931. Execution was not issued until January 7, 1957, which ran against real property. Meanwhile defendant was adjudicated a voluntary bankrupt, and was discharged September 27, 1945. The said execution and proceedings supplementary thereto were properly vacated, both for the reason given by Special Term that the execution was issued without permission from the court on notice to the judgment debtor ( Levine v. Bornstein, 4 N.Y.2d 241), and by reason of defendant's discharge in bankruptcy. The judgment was a provable debt. It was correctly listed in the bankruptcy schedules, with the possible exception of the addresses of the judgment creditors all but one of which were stated to be unknown. The burden was on plaintiffs to show that the bankrupt knew or in the exercise of reasonable diligence should have known their addresses as judgment creditors at the time of the bankruptcy proceedings. The Appellate Division correctly held that this burden was not sustained by plaintiffs.
The order appealed from is affirmed, with costs.
Chief Judge CONWAY and Judges DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur.
Order affirmed.