Opinion
December 12, 1968
Order entered August 9, 1968, vacating income execution and staying plaintiff-judgment-creditor from further proceeding, unanimously reversed on the law, with $30 costs and disbursements to appellant and defendant's motion denied. There is still outstanding and unvacated a judgment by default in favor of plaintiff and against defendant in the Civil Court of the City of New York. If there is any merit to defendant's contention that the obligation was in fact dischargeable in bankruptcy the judgment of the Civil Court requires and proper procedure dictates that defendant first attempt to vacate this judgment. If so advised, he may proceed pursuant to section 150 Debt. Cred. of the Debtor and Creditor Law. We note however, that section 17 (subd. [a], par. [2]) of the Bankruptcy Act (U.S. Code, tit. 11, § 35, subd. [a], par. [2]), excludes from the effect of a discharge in bankruptcy liability for obtaining money upon a materially false statement in writing respecting the bankrupt's financial condition.
Concur — Eager, J.P., Capozzoli, Tilzer, McGivern and McNally, JJ.