Summary
In Wyka v. Benedicks (266 App. Div. 1025, 1026) it was observed that: "Neither the allegations of the complaint nor the proof thereunder on the trial of the movant discloses that the judgment was based on `willful and malicious injuries to the person * * * of another'". It was further held that: "Although the facts in this case would permit a jury to find negligence on the part of appellant, they do not constitute proof that he was guilty of any willful or malicious act."
Summary of this case from Matter of MamalisOpinion
November 22, 1943.
Appeal from order denying defendant's motion to vacate and set aside an order of garnishee, and the execution based thereon, against the wages of the defendant. Neither the allegations of the complaint nor the proof thereunder on the trial of the movant discloses that the judgment was based on "willful and malicious injuries to the person * * * of another". (Bankruptcy Act, § 17 [U.S. Code, tit. 11, § 35, subd. (a), cl. (2)]; Ely v. O'Dell, 146 Wn. 667, 57 A.L.R. 151 and cases cited therein; Metcalf v. Reynolds, 267 N.Y. 52; Brown v. Garey, 267 N.Y. 167, 171.) A trolley car and an automobile driven by appellant were proceeding along a public street side by side. At a street intersection the decedent started to cross in front of the trolley car. The motorman sounded his gong, then brought his car to a stop. Appellant, however, continued on past the trolley car, then swerved to his left and struck the decedent. There are streets such as the one here involved where, by reason of the presence of parked cars, the opportunity to pass a moving trolley car is available only at street intersections, and it is a common practice for motorists to pass trolley cars at such intersections. When a trolley car is moving in the direction in which a motorist is driving, it is some indication that the roadway in front of and to the left of the trolley car is clear. Although the facts in this case would permit a jury to find negligence on the part of appellant, they do not constitute proof that he was guilty of any willful or malicious act. Order reversed on the law, with ten dollars costs aand disbursements, and the motion granted, without costs. Hagarty, Carswell, Johnston, Adel and Lewis, JJ., concur.