§ 2173. When insolvent cannot be discharged. In either of the following cases, the petitioner is not entitled to a discharge: 1. Where it appears, upon the hearing or trial, that, after making the schedule annexed to his petition, he has collected a debt or demand, or transferred, absolutely, conditionally, or otherwise, any of his property, not exempt by law from levy and sale by virtue of an execution, and he neglects or refuses forthwith to pay over to the clerk, the full amount of all debts and demands so collected, and the full value of all property so transferred, except so much of the money, and of the value of the property, as appears to have been necessarily expended by him for the support of himself or his family. 2. Where it appears, in like manner, that the petitioner, within two years before presenting the petition, has, in contemplation of his becoming insolvent, or of his petitioning for his discharge, or knowing of his insolvency, made an assignment, sale, or transfer, either absolute or conditional, of any of his property, or of any interest therein. or confessed a judgment, or given any security, with a view of giving a preference to a creditor for an antecedent debt. From Id., §§ 23 and 24, as amended by ch. 147 of 1854. § 2174. When assignment to be directed. An order, directing the execution of an assignment, must be made by the court, where it appears, by the verdict of the jury; or, if a jury has not been demanded, or the jurors have been discharged by reason of their inability to agree, where it satisfactorily appears to the court: as follows: 1. That the petitioner is justly and truly indebted to the consenting creditors, in sums which amount, in the aggregate, to two-thirds of all the debts, which the petitioner owed, at the time of presenting his petition, to creditors residing within the United States. 2. That he has honestly and fairly given a true account of his property. 3. That he has, in all things, conformed to the matters required of him by this article. From Id., part of §§ 25 and 26. § 2175. Assignment; contents, and to whom made. The order must designate one or more trustees, residents of the State; and must direct the petitioner to execute, to him or them. an assignment of all his property, at law or in equity. in possession, reversion, or remainder, excepting only so much thereof, as is exempt by law from levy and sale, by virtue of an execution. The assignment must be acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, and must be recorded in the clerk's office of the county. Where it appears, from the schedule or otherwise, that real property will pass thereby, it must be also recorded as a deed, in the proper office for recording deeds, of each county where the real property is situated. From Id., remainder of § 25, and first clause of art. 7, § 20. § 2176. Id.; trustees, how designated. The trustee or trustees may be nominated by a majority in amount of the consenting creditors. If no person is so nominated, one or more persons must be appointed by the court for the purpose. The nomina tion may be included in the consent, or made in a separate paper, or orally upon the hearing or trial, and entered in the minutes. From Id., § 27. § 2177. Effect of assignment. The assignment vests in the trustee or trustees all the petitioner's interest, legal or equitable, at the time of its execution, in any real or personal property, not exempt by law from levy and sale by virtue of an execution; and any contingent interest which may vest within three years thereafter. When a contingent interest so vests, it passes to the trustee, in the same manner as it would have vested in the petitioner, if he had not made an assignment. From Id., § 28. § 2178. When discharge to be granted. Upon the production by the petitioner of a certificate of the trustee or trustees, duly acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, to the effect that the insolvent has assigned, for the benefit of all his creditors, all his property so directed to be assigned, and all the books, vouchers, and papers relating thereto, and that he has delivered so much thereof as is capable of delivery; and also of a certificate of the county clerk, that the assignment has been duly recorded in his office the court must grant to the insolvent a discharge from his debts, which has the effect declared in the following sections of this article. From Id., § 29. 2179. Proceedings where trustee refuses to give certificate, etc. If a trustee refuses or neglects, upon payment or tender by the petitioner of the expense of so doing, to execute or acknowledge a certificate, as prescribed in the last section, or to cause the assignment to be recorded, as therein prescribed, the court, upon proof by affidavit of the facts, must make an order, requiring the trustee to show cause, at a time and place therein specified, why the petitioner should not be discharged, notwithstanding his neglect or refusal; and why the trustee's appointment should not be revoked. From § 23 of art. 7 of same title of the R. S. 2180. The same. If, upon the return of the order, it appears that the assignment has been duly executed, and that the petitioner has duly delivered all his property directed to be assigned, and all the books, vouchers, and papers relating thereto, which are capable of delivery, the court may, either 1. Grant a discharge of the petitioner, notwithstanding the neglect or refusal of the trustee; or 2. Make an order revoking the appointment of the trustee. Upon the entry of such an order, the powers of the trustee, and his interest in the assigned property cease. If there is no other trustee, the court must, by the same or another order, appoint one or more new trustees. Such an appointment has the same effect, as if the person or persons so appointed were named as trustees in the original assignment. From Id., §§ 24, 25 and 26. § 2181. Discharge, etc., to be recorded. The discharge, and the petition, affidavits, orders, schedule, and other papers, upon which the discharge is granted, exclusive of the minutes of testimony, must be recorded in the clerk's office of the county, within three months after the discharge is granted. In default thereof, the discharge becomes inoperative, from and after that time. The original discharge, the record thereof, or a transcript of the record duly authenticated, is conclusive evidence of the proceedings and facts therein contained. The other papers specified in this section, the record thereof, or a transcript of the record duly authenticated, are presumptive evidence of the proceedings and facts therein contained. From Id., § 19, as amended by ch. 116 of 1866 (6 Edm. 701). § 2182. Effect of discharge. Except as prescribed in the next two sections, a discharge, granted as prescribed in this article, exonerates and discharges the petitioner from every debt, due at the time when he executed his assignment, including a debt contracted before that time, though payable afterward, and from every liability incurred by him, by making or endorsing a promissory note, or by accepting, drawing, or indorsing a bill of exchange, before the execution of his assignment, or incurred by him, in consequence of the payment, by any party to such a note or bill, of the whole or any part of the money secured thereby, whether the payment is made before or after the execution of the assignment. At any time after one year has elapsed, since the recording of the discharge, and the petition, affidavits, orders, schedule and other papers upon which the discharge was granted, as prescribed in section twenty-one hundred and eighty-one of this act, the petitioner may apply, upon proof of his discharge, to the court in which a judgment shall have been rendered against him, for an order directing the judgment to be cancelled and discharged of record. If it appears that he has been discharged from the payment of that judgment, an order must be made accordingly, and thereupon the clerk must cancel and discharge the docket thereof, as if the proper satisfaction piece of the judgment was filed. Notice of the application, accompanied with copies of the papers upon which it is made, must be given to the judgment creditor, unless his written consent to the granting of the order, with satisfactory proof of the execution thereof, and if he is not the party in whose favor the judgment was rendered, that he is the owner thereof, is presented to the court upon the application. From art. 3, §§ 30 and 31 of the R. S. Am'd by ch. 402 of 1883. § 2183. Id.; execption as to foreign contracts or credit ors. In either of the following cases, such a discharge does not affect a debt or liability, founded upon a contract, unless it was owing, when the petition was presented to a resident of the State; or the creditor has executed a consent to the discharge; or has appeared in the proceedings; or has received a dividend from the trustee : I. Where the contract was made with a person, not a resident of the State. 2. Where it was made and to be performed without the State. 3. Where the creditor was not at the time of the discharge, a resident of the State. From art. 3, §§ 30 and 31 of the R. S. § 2184. Id.; as to debts, etc., to the United States and the State. Such a discharge does not affect : 1. A debt or duty to the United States; or 2. A debt or duty to the State, for taxes or for money received or collected by any person as a public officer, or in a fiduciary capacity, or a cause of action specified in section 1969 of this act, or a judgment recovered upon such a cause of action. Except as prescribed in this section, the discharge exonerates the petitioner from a debt or other liability to the State, in like manner and to the same extent, as from a debt or liability to an individual. From art. 7, §§ 29 and 30 as the latter section was amended by ch. 2 of 1859. § 2185. Insolvent to be released from imprisonment. If, at the time when the discharge is granted, the petitioner is under arrest, by virtue of an execution against his person issued, or an order of arrest made, in an action or special proceeding, founded upon a debt or liability from which he is discharged, as prescribed in the foregoing sections of this article, he must be released from the arrest, upon producing to the officer his discharge, or a certified copy of the record thereof. If the adverse party wishes to test the validity of the discharge, he may procure a new order of arrest, or cause a new execution to be issued, as the case requires. From art. 3, § 34, R. S. § 2186. Discharge; when void. A discharge, granted as prescribed in this article, is void, in either of the following cases: 1. Where the petitioner wilfully swears falsely, in the affidavit annexed to his petition or schedule, or upon his examination, in relation to any material fact, concerning his property or his debts, or to any other material fact. 2. Where, after presenting his petition, he sells, or in any way transfers or assigns, any of his property, or collects any debt or demand owing to him, and does not give a just and true account thereof, upon the hearing or trial, and does not pay the money so collected, or the value of the property so sold, transferred, or assigned, as prescribed in this article. 3. Where he secretes any part of his property, or a book, voucher. or paper relating thereto, with intent to defraud his creditors. 4. Where he fraudulently conceals the name of any creditor, or the sum owing to any creditor, or fraudulently misstates such a sum. 5. Where, in order to obtain his discharge he procures any person 70 become a consenting creditor, willfully, intentionally and knowingly, for a sum not due from him to that person in good faith, or for a sum greater than that for which the holder of a demand, purchased or assigned, is deemed a creditor, as prescribed in this article. 6. Where he pays or consents to the payment of any portion of the debt or demand of a creditor or grants or consents to the granting of any gift or reward to a creditor, upon an express or implied contract. trust, or understanding, that the creditor so paid or rewarded should be a consenting creditor, or should abstain or desist from opposing the discharge. 7. Where he is guilty of any fraud whatsoever, contrary to the true intent of this article. From Id., § 35 Sub. 5 am'd by ch. 231 of 1890. § 2187. Invalidity may be proved on motion to vacate order of arrest, etc. Where a person, who has been discharged as prescribed in this article, is afterwards arrested by virtue of an order of arrest made, or an execution issued. in an action founded upon a debt or liability from which he is so discharged, the adverse party may oppose his application to be released from the arrest, by proof, by affidavit, of any cause for avoiding the discharge, for want of jurisdiction or as specified in the last section. If such a cause is established, the application must be denied. From ff 21 and 22 of art. 7 of the R. S. ARTICLE SECOND. Exemption from Arrest, or Discharge from Imprisonment, of an Insolvent Debtor. SEC. 2188. Who may be exempted, and by what court. 2189. Contents of petition. 2190. Petitioner's schedule. 2192. Order to show cause. 2193. Hearing, etc. 2194. Order directing assignment; assignment pursuant thereto. 2195. When discharge to be granted; effect thereof. 2196. Discharge to be recorded, etc. 2197. Petitioner to be released from imprisonment. 2198. Debts not affected, etc. 2199. Discharge, when void. § 2188. Who may be exempted, and by what court. An insolvent debtor may be exempted from arrest, or discharged from imprisonment, as prescribed in this article. For that purpose, he must apply, by petition, to the county court of the county in which he resides, or is imprisoned; or, if he resides or is imprisoned in the city of New York, to the supreme court. A person who has been admitted to the jail liberties, is deemed to be imprisoned, within the meaning of this article. From 2 R. S. 28, Part 2, ch. 5, tit. 1, art. 5, part of § 1 (2 Edm. 29). See 2200. § 2189. Contents of petition. The petition must be in writing; it must be signed by the insolvent, and specify his residence, and also, if he is in prison, the county in which he is imprisoned, and the cause of his imprisonment. It must set forth, in substance, that he is unable to pay all his debts in full; that he is willing to assign his property for the benefit of all his creditors and in all other respects to comply with the provisions of this article, for the purpose of being exempted from arrest and imprisonment, as prescribed therein; and it must pray, that upon his so doing, he may thereafter be exempted from arrest, by reason of a debt, arising upon a contract previously made; and also, if he is imprisoned, that he may be discharged from his imprisonment. It must be verified by the affidavit of the insolvent, annexed thereto, taken on the day of the presentation thereof, to the effect, that the petition is in all respects true in matter of fact. From 2 R. S. 28, Part 2, ch. 5, tit. 1, art. 5, part of § 1 (2 Edm. 29). § 2190. Petitioner's schedule. The petitioner must annex to his petition, a schedule, in all respects similar to that required of an insolvent, as prescribed in section 2162 of this act. From Id., part of § 2. See 2162. |