Dimock v. Revere Copper Company of Boston Massachusetts

This case comes here by a writ of error to the supreme court of New York, having been decided in the court of appeals, and the record remitted to the supreme court, that judgment might be finally entered there. The action was brought in that court on a judgment in favor of the Revere Copper Company, plaintiff, against Anthony W. Dimock, rendered in the superior court of the commonwealth of Massachusetts, for the county of Suffolk, on the first day of April, 1875.

The defendant, Dimock, pleaded, in bar of this action, a discharge in bankruptcy, by the district court of the United States for the District of Massachusetts, rendered on the twenty-sixth day of March, 1875, five days before judgment in the state court. The case being submitted to the New York supreme court in special term, without a jury, that court found the following facts, and conclusions of law thereon:

'AS FINDINGS OF FACT.

'First. That the plaintiff is, and at the times hereinafter     mentioned was, a corporation, duly organized and existing      under and by virtue of the laws of the common wealth of      Massachusetts.

'Second. That on or about the thirteenth day of January,     1874, the Revere Copper Company of Boston, Massachusetts, the      plaintiff herein, commenced an action in the superior court      of the commonwealth of Massachusetts, within and for the      county of Suffolk, a court of general jurisdiction, against      Anthony W. Dimock, the defendant herein, by the issue of a      writ of attachment against the goods, estate, and body of the      said defendant, and which said writ was duly served on said      defendant, and the summons to appear in said action was duly      served upon him personally, and that the said defendant      thereafter duly appeared in said action by attorney; that the      cause of action was an indorsement of said Dimock of two      promissory notes made in the city of New York to the order of      plaintiff by the Atlantic Mail Steam-ship Company, and dated      December 19, 1872.

'Third. That on or about June 23, 1874, the said defendant,     Anthony W. Dimock, filed a petition in bankruptcy, and was      duly adjudicated a bankrupt in the district court of the      United States for the district of Massachusetts, and that      such proceedings were thereafter had that on or about March 26, 1875,      the said Dimock was discharged from all debts and claims      provable against his estate, and which existed on the      twenty-third day of June, 1874.

'Fourth. That such proceedings were had in the aforesaid     action in the superior court of the commonwealth of      Massachusetts that on or about April 1, 1875, the plaintiff      duly recovered judgment in said action against the defendant      for the sum of three thousand five hundred and ninety-five      15-100 dollars, ($3,595.15,) and that said judgment was upon      that day duly entered.

'Fifth. That no part of said judgment has been paid, and the     whole thereof is now due and payable to the plaintiff.

'AS CONCLUSIONS OF LAW.

'1. That the said proceedings in bankruptcy are no bar to the     present action, and constitute no defense herein.

'2. That the plaintiff should have judgment against the     defendant for the sum of three thousand five hundred and      ninety-five 15-100 dollars, ($3,595.15,) with interest from      April 1, 1875, amounting to one thousand one hundred and      forty-two 96-100 dollars, ($1,142.96,) making in all four      thousand seven hundred and thirty-eight 11-100 dollars,      ($4,738.11,) together with the costs of this action, to be      taxed, and an allowance, in addition to costs, amounting to      the sum of seventy-five dollars.'

The judgment rendered on these findings was reversed by the supreme court in general term, and that judgment was in turn reversed by the court of appeals, which restored the judgment of the special term. 90 N. Y. 33.

''Geo. Putnam Smith'', for plaintiff in error.

''Wm. S. Opdyke'', for defendant in error.

[Argument of Counsel from pages 561-563 intentionally omitted]

Mr. David Willcox for defendant in error.

MILLER, J.