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Packer v. Lehner

Decided: July 25, 1935.

ISRAEL PACKER, TRADING AS I. PACKER & COMPANY, PLAINTIFF-APPELLEE,
v.
JOHN LEHNER, FIRST NAME JOHN BEING FICTITIOUS, TRUE NAME BEING UNKNOWN, DEFENDANT-APPELLANT



On appeal from the District Court of the Second Judicial District of the county of Bergen.

For the appellant, Allan M. Kobalkin (Sidney Alexander, of counsel).

For the appellee, Harry Kampelman (Sigmond Unger, of counsel).

Before Justices Trenchard, Heher and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. Does the "Act concerning general assignments, Revision one thousand eight hundred and ninety-nine" (1 Comp. Stat. 1709-1910, p. 113, as amended by chapter 243, Pamph. L. 1928, p. 410), operate for the discharge of the debtor from future liability to a creditor who has come in under the assignment and claimed to participate in the distribution of the proceeds of the assigned property?

The stated question arises out of these stipulated facts. Plaintiff below sued the defendant below for $539.98 (waiving the excess of $500) on a book account for merchandise

sold and delivered by him to the defendant between August 24th, 1931, and December 30th, 1931. In pursuance of an endorsement on the summons and complaint that defendant file specification of defenses to the suit (Pamph. L. 1910, ch. 281; 61 B, District Court act, 2 Comp. Stat. 1709-1910, p. 1971), defendant pleaded (1) that he filed an assignment with the clerk of Passaic county in accordance with the provisions of the act; that plaintiff participated in that proceeding by filing a proof of claim, with the assignee, for the indebtedness upon which this suit is based, and (2) that the assignee obtained a discharge from the Passaic County Orphans Court and that therefore, he, defendant, was discharged from the payment of this indebtedness.

On the return day of the suit counsel for the plaintiff moved to strike the specification of defenses on the grounds that they were legally insufficient and frivolous and therefore judgment should be entered for the plaintiff.

It further appears by concession of counsel for the respective parties, that the assignment was made subsequent to the date that the instant cause of action arose against the defendant; that plaintiff received no dividend on his claim because there were no funds in the hands of the assignee to pay general creditors; and that the assignee had been discharged of his trust.

The trial judge, pointing out that section 22 of the act of 1899, supra (the sole section thereof relating to discharge), was repealed by the act of 1928, supra, concluded that there was nothing in the act as now constituted which operates to discharge a debtor, and accordingly granted the plaintiff's motion and entered judgment in his favor and against the defendant in the sum of $500.

In support of appellant's contention we are told that it is of no moment that the plaintiff did not receive any dividend or that the assignment was made subsequent to the date when the cause of action arose against the assignor. Defendant's insistment is that plaintiff's presentation of his claim was a coming in for a dividend to the ...


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