Therefore deponent asks that said judgment of

be cancelled and discharged of record.

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 289.)

At a Special Term, etc., held at the Court House in the City of..

on the ... day of

19....

debts in bankruptcy pursuant to the Acts of Congress relating to bankruptcy, by which affidavit it appears that a certain judgment rendered in the

Court on the

... day of

judgment roll whereon was filed and said judgment docketed in the office of the Clerk of the County of

VOL. III-18

on

day of

the 19..., was discharged by said order of discharge in bankruptcy and it appearing that more than one year has elapsed since the entry of said order of discharge and that the debt upon which said judgment was obtained was not (created by fraud nor such as would not be dischargeable in bankruptcy and that due notice of this application has been given to the said judgment creditor together with copies. of the papers upon which it is made, now, on motion of

....

Esq., attorney for the said

one appearing in opposition thereto, it is hereby

and no

Ordered, that the said judgment be and the same is hereby cancelled and discharged of record.

Enter.

J.

Cancellation and discharge of judgment against bankrupt (New York Practice). Consolidated Laws "Debtor and Creditor Law," Chap. 12, § 150, replacing § 1268, Code of Civil Procedure. [See B. C. & G. Consolidated Laws of New York (2d Ed.), Vol. 11, p. 1660.

Notice of motion with copies of all papers must be served on judgment creditor or his attorney of record.

Provisions mandatory.

Arnold v. Oliver, 64 How. 452. Eberspacher v. Boehm, 11 N. Y. Supp. 404. Firestone Tire & Rubber Co. v. Agnew et al. (N. Y. Ct. of App.), 194 N. Y. 165, 21 Am. B. R. 292.

New York Institution, etc. v. Crockett, 117 App. Div. (N. Y.) 269, 17 Am. B. R. 233.

Hussey v. Judson, 11 Am. B. R. 521, 43 Misc. (N. Y.) 370.

Applies to judgment entered after discharge upon provable debt.

Walker v. Muir (N. Y. Ct. of App.), 21 Am. B. R. 593, 194 N. Y. 420, aff'g,

s. c. 21 Am. B. R. 278, 127 App. Div. (N. Y.) 163.

Remedy of judgment creditor if aggrieved by order cancelling judgment is to appeal or ask leave to reargue, but not to move to vacate.

McKee v. Preble, 31 Am. B. R. 852, 154 App. Div. (N. Y.) 156.

Applies to debt due State.

In re Brandreth, 14 Hun (N. Y.) 585.

Section applies to a judgment recovered after the filing of the petition upon a previous indebtedness.

Crouse v. Whittelsey, 15 N. Y. Supp. 851.

As to partnership debt.

Berry Bros. v. Sheehan, 17 Am. B. R. 322, 115 App. Div. (N. Y.) 488. In re Quackenbush (N. Y. Sup.), 19 Am. B. R. 647, 122 App. Div. (N. Y.) 456. Where a partner was not served in an action against his firm, and no individual judgment was entered against him, he is not entitled to a cancellation of the judgment on his discharge in bankruptcy, where there was no adjudication in that proceeding as to the partnership debt.

In re Application, etc., of Gruber v. Knobloch, 21 Am. B. R. 467, 129 App. Div.

297.

Dodge v. Kaufman, 15 Am. B. R. 542, 46 Misc. (N. Y.) 248.

Judgment for conversion.

Fechter v. Postel, 17 Am. B R. 316, 114 App Div. (N. Y.) 776.

After death of judgment debtor the burden is upon judgment creditor to show

that judgment had not been released by the discharge.

In re Peterson, 22 Am. B. R. 549, aff'd (N. Y. App. Div.), 24 Am. B. R. 270. When application denied.

Debt created by fraud.

Kaufman v. Lindner (City Ct.), 6 Civ. Proc. R. 148.

Bullis v. O'Beirne (U. S. Sup.), 13. Am. B. R. 108, 195 U. S. 606, 49 L. Ed. 340. "Wilful and malicious injury."

In re Halper, 31 Am. B. R. 283, 82 Misc. (N. Y.) 205.

Judgment for criminal conversation, necessarily involving malice.

Tinker v. Colwell (U. S. Sup.), 11 Am. B. R. 568, 193 U. S. 473, 48 L. Ed. 754, aff'g 7 Am. B. R. 334, 169 N. Y. 531.

Judgment for alimony not dischargeable and hence cannot be cancelled. Maier v. Maier (App. Term. N. Y.), 28 Am. B. R. 856; 77 Misc. (N. Y.) 145. Denied where it appears judgment creditor had no notice, and address was incorrectly stated in schedules.

Murphy v. Blumenreich, 19 Am. B. R. 910, 123 App. Div. (N. Y.) 645. In re Application, etc., of Quackenbush, 122 App. Div. (N. Y.) 456, 19 Am. B. R. 647. Columbia Bank v. Birkett, 12 Am. B. R. 691, 195 U. S. 345, aff'g, s. c. 9 Am. B. R. 481, 174 N. Y. 112. Weidenfeld v. Tillinghast (N. Y. City Ct.), 18 Am. B. R. 531, 54 Misc. (N. Y.) 90. Cagliostro v. Indelle, 17 Am. B. R. 685, 58 Misc. (N. Y.) 44. Schiller v. Weinstein, 15 Am. B. R. 183, 47 Misc. (N. Y.) 622. Sutherland v. Lasher, 11 Am. B. R. 780, 41' Misc. (N. Y.) 249, aff'd 87 App. Div. (N. Y.) 633.

Burden of proof.

Weidenfeld v. Tillinghast (supra).

Effect of failure to have provable judgment cancelled of record.

In re Peterson, 22 Am. Dec. 549, aff'd, 24 Am. B. R. 270.

Proper listing of creditors.

Kreitlein v. Ferger (U. S. Sup.), 34 Am. B. R. 862, 238 U. S. 21, 59 L. Ed. 1184; rev'g 28 Am. B. R. 908.

Mailing of notice in manner prescribed in Act.

In re Downing, 28 Am. B. R. 778.

Debt not properly scheduled when scheduled as "unknown," when in fact known.

Miller v. Guasti (U. S. Sup.), 29 Am. B. R. 201, 226 U. S. 170, 57 L. Ed. 173; aff'g Guasti v. Miller, 26 Am. B. R 797.

An order on an application to cancel a judgment is an order in a special proceeding and is appealable to Court of Appeals.

Guasti v. Miller, (N. Y. Ct. of App.), 26 Am. B. R. 797, 203 N. Y. 259.

Comes the plaintiff in the above-styled cause, and, for replication to defendant's plea of discharge in bankruptcy, says that .... .., merchandise upon

obtained from

credit as alleged in the declaration upon a material false statement in writing made to for the purpose of obtaining such property on credit; that said statement was so made on or about the

to

day of

to

; that said statement was duly communicated
by
for the purpose of

inducing the sale of said merchandise on credit to him by the said

and that

....

sold goods to in reliance on said statement; that by the same it was represented that he over and above all debts and

statement of said
had a net surplus of $.....

liabilities, and that his total indebtedness was $......

....

and

and whereas a

was

that no part of said indebtedness was then due, where in fact his indebtedness was greatly more than $.... great amount of the indebtedness owed by past due and unpaid. All of said facts were well known to and said statements were false and were well known to be false by or were so made by him or at his direction as to amount to a wilful misrepresentation, in that he failed to ascertain the condition of his financial standing and that the misrepresentations were not known to

until after the filing of his petition in bankruptcy.

SUBDIVISION X

COMPOSITION WITH CREDITORS, BEFORE AND AFTER ADJUDICATION

The following Official Forms, ante, should be consulted in connection with those given below, Nos. 60, 61.

FORM NO. 344. Offer of Composition, 2587.

345.

Petition for Appointment of Referee and staying Adjudication, 2589.

346. Order appointing Referee and staying Adjudication, 2590.

349. Petition to deposit Money for the Purpose of Composition,

2593.

350. Order to deposit thereon, 2594.

351. Certificate of Deposit, 2595.

352. Offer to accept not in lieu of cash payment, 2597.

353. Order to show Cause on Petition for Confirmation, 2598.

354. Notice to Creditors of Confirmation, 2599.

355. Referee's Certificate in Composition, 2600.

356. Order confirming Composition and making Distribution, 2603.

357. Appearance of objecting Creditor in Composition, 2607.

358. Specifications of Objection to Confirmation of Composition, 2608.

359. Exceptions to Specifications, 2610.

360. Order of reference to Special Master in Composition, 2611.

361. Report of Special Master on Specifications, 2612.

362. Order Confirming or refusing Confirmation of Composition, 2614.

363. Petition to set aside a Composition, 2615.

In the District Court of the United States for the

The undersigned, who was ajudicated a bankrupt herein on the

day of

19. ..., and whose schedules