Opinion
August, 1919.
J. Baldwin Hand, for motion.
Harry J. Shields (Frederick N. VanZandt, of counsel), opposed.
The motion is to vacate a body execution issued against the defendant. The judgment against him was obtained for a tort. The motion is based upon two points; one, that the action is not one in which an execution against the person can be issued. This point has evidently already been decided adversely to defendant's contention upon a prior motion. There can be no review of that decision in such a manner as this.
The other point is that since the decision of the prior motion the defendant has filed his petition in bankruptcy and the plaintiff has filed her claim arising on the judgment in this action and has voted upon that claim for the election of a trustee. This it is claimed constitutes a waiver of the plaintiff's right to pursue any remedies on the judgment in this court. This claim was not presented before. The rule undoubtedly is that where a bankrupt obtains his discharge all debts other than those expressly excepted are extinguished. Fechter v. Postel, 114 A.D. 776. But a debt that is not provable in bankruptcy and not released by the bankrupt's discharge may be pursued notwithstanding, in a state court, and the proving of the claim in bankruptcy is not an election of a remedy. Maxwell v. Martin, 130 A.D. 80, 84. But in the case at bar the bankrupt has not received his discharge. On the contrary, that has been refused. In that situation the proving of debts even of those that would be released by a discharge is not a waiver of the right to proceed in any way that may be proper in a state court. Collier Bankruptcy (11th ed.), 292, 293, 424; Brandenburg Bankruptcy (1917), § 671; Dingee v. Becker, 9 Nat. Bank. Reg. 508; Miller v. O'Kain, 14 id. 145; Whitney v. Crafts, 10 Mass. 23.
Motion denied.