Hall v. Robbins

By the Court, Geo. G. Barnard, J.

This action is properly brought by the plaintiff against the defendant.

It has been finally settled, that a promise made by a defendant, upon a valid consideration, to pay a third person, will sustain an action by the third person, in his own name, against the person making the promise. (Lawrence v. Fox, 20 N. Y. 268.) In this case the defendant, in consideration of goods sold and delivered to him by a firm of Viles & Monroe, agreed with them to pay the plaintiff’s firm the amount in question, being a debt due from Viles & Monroe to them. The plaintiff owns the claim. The action, as between the parties to it, arose upon the execution of the covenant, and the obligation to pay ran for twenty years thereafter. This time has not expired since the defendant moved into this State, and therefore the claim is not barred by the statute of limitations.

The defendant has been discharged under the insolvent laws of Massachusetts, and the discharge would bar the collection of this claim if the defendant, in his petition, had set forth the same. He did not do so. The omission is admitted to have been neither willful nor fraudulent, and these facts present the question of the effect of the discharge on this debt. I think this discharge is good to bar a debt omitted to be mentioned, by, mistake, inaccuracy or ignorance. (Small v. Graves, 7 Barb. 576. Stanton v. Ellis, 12 N. Y. 575.) The record in Massachusetts must be deemed conclusive. Ho question is made but' that the insolvent commissioner acquired jurisdiction of the case, and he adjudged that the insolvent'had assigned-his estate for the benefit of his creditors, according to the provisions of the Massachusetts insolvent law, and had in all things conformed to the directions of such law, and fully discharged the insolvent from all his debts.

[First Department, General Term, at New York, November 7, 1871.

From a careful examination of the cases, I am satisfied that a bare omission of a debt does not vitiate the discharge, as to such omitted debt.

I think the referee erred in holding the discharge void ' as to the plaintiff for these reasons, and that the judgment should be reversed, the order of reference vacated, and a new trial granted at the circuit, costs to abide the event.

Ingraham, P. J., and Cardoso and Geo. G. Barnard, Justices.]