(75 App. Div. 581.) and 112 New York State Reporter GEOGHEGAN et al. v. LUCHOW et al. (Supreme Court, Appellate Division, First Department. November 7, 1902.) 1. BRINGING IN DEFENDANTS Not Served-RIGHT TO REQUIRE-WAIVER-EXTENDING TIME FOR ANSWER. A defendant in an action against directors to enforce their statutory liability to creditors of the corporation by accepting stipulations extending his time to answer is not barred from complaining of plaintiffs' gross laches in failing to bring in the other defendants by serving them with sunimons. 2. SAME. Whether or no the action against directors to enforce their statutory liability to creditors of the corporation can be maintained against the defendant alone who was served with summons, or the defendants not served would have a good defense, plaintiffs cannot complain because required to bring in defendants not served as a condition to the complaint not being dismissed. 3. SAME-Costs. The granting to a defendant, in addition to $10 motion costs, of $50 costs, to indemnify him against expense of answering, on the ground that the action could not be successfully maintained, is improper, on a motion made by the only defendant served, in an action against directors to enforce their statutory liability to creditors of the corporation, to compel dismissal of the complaint unless plaintiffs bring in the other defendants. Appeal from special term, New York county. Action by Stephen G. Geoghegan and others against August Luchow and others. From an order granting a motion of defendant Luchow for the dismissal of the complaint as to him, with $10 costs, unless plaintiffs within 30 days cause the summons and complaint to be served on the other defendants who reside in the state, and also pay to defendant Luchow, or his attorney, $50 costs, plaintiffs appeal. Modified. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, O'BRIEN, and LAUGHLIN, JJ. Henry Hoelljes, for appellants. LAUGHLIN, J. The plaintiffs are creditors of the Harlem Casino Company, and as such bring this action in behalf of themselves and all other creditors against the directors of the corporation to enforce the liability created by section 24 of the stock corporation law prior to its repeal by chapter 354 of the Laws of 1901. The summons and complaint were served on the defendant Luchow on the 14th day of October, 1901. His time to answer was extended by stipulation from time to time until after the making of this motion. None of the other defendants have been served. The motion was made upon the ground that the plaintiffs had unreasonably neglected to serve the other defendants. The motion was opposed by the plaintiffs upon three grounds: (1) That the defendant was not in a position to make the motion upon which the order was granted, he not having answered or demurred, but having obtained an extension of time, which had not expired when the motion was made; (2) that, inasmuch as no notice. of intention to hold them personally liable was served on the other directors upon whom service of the summons has not been made, as required by subdivision 2 of section 34 of the stock corporation law, as amended by chapter 354 of the Laws of 1899, which was repealed by chapter 354 of the Laws of 1901, such directors are not liable, and service upon them will be of no avail; and (3) that due diligence has been used in endeavoring to make such service. The plaintiffs have made the other directors defendants, and they have not used due diligence in serving the summons upon them. The acceptance of stipulations extending his time to answer did not bar the defendant from complaining of the plaintiffs' gross laches in failing to bring in the other defendants. The appeal does not present the question as to whether the action can be maintained against the defendant Luchow alone, or whether the defendants who have not been served would have a good defense. The appellant also contends that the order requires him to serve all of the defendants, which is impossible on account of the nonresidence of one of them. As we read the order, it only requires him to serve the resident defendants. The award, however, of $50 costs to the defendant, in addition to the costs of the motion, cannot be sustained. The only foundation laid for the imposition of these costs was the claim that, as the action could not be successfully maintained, he should be indemnified against the expense of having the records of the corporation examined to prepare his answer. We fail to discover any logic in this claim. If the other parties had been served and notified timely, the defendant would have been obliged to prepare his answer, and then might have been held liable. The order should, therefore, be modified by striking out the requirement that the plaintiffs pay $50 to the respondent, and, as modified, affirmed without costs. All concur. (75 App. Div. 524.) PEOPLE ex rel. MEYER v. GOULD, Chamberlain (SMALLEY, Intervener). (Supreme Court, Appellate Division, First Department. November 7, 1902.) 1. MONEY IN LIEU OF BAIL-RIGHTS OF DEFENDANT'S CREDITORS. In a criminal proceeding against F., money belonging to S. was deposited in lieu of an undertaking for F.'s appearance. Held, that while, so far as that proceeding was concerned, it was F.'s money, it was not so for any other purpose, and on discharge of F. was not subject to claim of F.'s creditor. Appeal from special term, New York county. Mandamus, on the relation of Anna Meyer, against Elgin R. L. Gould, chamberlain of the city of New York. Newton B. Smalley intervened. From an order denying a motion for a peremptory. writ (77 N. Y. Supp. 1067), relator appeals. Affirmed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, O'BRIEN, and LAUGHLIN, JJ. Charles Haldane, for appellant. Thomas C. Campbell, for respondent Smalley. and 112 New York State Reporter MCLAUGHLIN, J. The relator, in an action commenced in the city court of the city of New York, recovered a judgment for upwards of $1,000 against Mary Elizabeth Fieroe, the defendant therein named, moncys alleged to have been stolen by the defendant from the plaintiff. Prior to the commencement of that action, the defendant, Fieroe, was indicted for grand larceny in the first degree, and was admitted to bail in the sum of $1,000, in lieu of which the respondent Smalley deposited with the city chamberlain $1,000, taking from him the following receipt: "This is to certify that Newton B. Smalley, Plainfield, New Jersey, for the defendant above named, has deposited with the chamberlain of the city of New York this day the sum of ten hundred dollars, the sum mentioned in said order as security for said defendant's appearance pursuant to the said order, instead of said undertaking of bail, pursuant of section 586 of the Code of Criminal Procedure." After such deposit had been made, the relator, as the plaintiff in the action which she had brought against Fieroe, procured a warrant of attachment, and attempted to levy upon the same. Subsequently Fieroe was brought to trial, and, the jury having disagreed, an order was made discharging her and canceling the undertaking which she had given, and also directing that the money deposited be returned to her. Before such return had been made, the relator in the action brought by her recovered a judgment, upon which execution was issued, and a levy attempted to be made upon such money. The chamberlain refused to deliver the money to the sheriff, and thereupon the relator applied for a peremptory writ of mandamus to compel him to do so. The respondent Smalley intervened, and asked that the chamberlain be directed to deliver the money to him; and, in addition to the receipt which he took from the chamberlain at the time he deposited the money with him, hereinbefore referred to, he showed that prior to the making of the application, and after Fieroe had been discharged in the criminal. proceeding, and her undertaking canceled, she had given to him. the following order, which had been served upon the chamberlain : "April 12, 1902. "To the City Chamberlain of the City of New York-Sir: My undertaking to appear for trial before the court of general sessions of the county of New York was on this day discharged by order of the Hon. Joseph E. Newburger, who directed that the $1,000 deposited by Newton B. Smalley to secure my attendance at court should be refunded to him. As the said money was deposited by the said Newton B. Smalley to secure my liberty, and as I have not now, and never have had, any ownership in the said money, you are hereby directed to pay the said money to the said Newton B. Smalley, or his order. Mary E. Fieroe." He also showed by his own affidavit, as well as by the affidavit of Fieroe, and the fact was not contradicted,-that the money deposited in fact belonged to him. Both applications were denied, and the relator has appealed. We are of the opinion that the relator's application was properly denied. The fact that the money deposited actually belonged to Smalley is not disputed, nor is it disputed that such deposit was made by him in lieu of the undertaking required in the criminal proceed ing. So far as that proceeding was concerned, it was Fieroe's money (People v. Laidlaw, 102 N. Y. 582, 7 N. E. 910), but it did not make it her money for any other purpose. Title to property can only be acquired by consent of the owner or by operation of law. Her creditors could not, by reason thereof, deprive the actual owner of it. The money in fact belongs to Smalley, and the court should, upon the facts presented, have granted his application, by directing the chamberlain to pay it to him. It is his money, and he is entitled to it. He, however, is apparently satisfied with the order, inasmuch as he has not appealed from it. The relator has no interest in it, and, that being so, certainly was not injured by the order made. The order appealed from, therefore, must be affirmed, with $10. costs and disbursements. All concur. (75 App. Div. 441.) In re MOLLNER. (Supreme Court, Appellate Division, First Department. November 7, 1902.) · 1. BANKRUPTCY-SCHEDULE OF DEBTS-RESIDENCE OF CREDITOR-STATEMENT DISCHARGE-JUDGMENT-SATISFACTION. Bankr. Act, § 7, requires the bankrupt to file in court a list of his creditors, showing their residence, if known, and, if unknown, to state the fact; section 17 provides that a discharge in bankruptcy shall release the bankrupt from all provable debts, except such as have not been duly scheduled, etc.; and Code Civ. Proc. § 1268, declares that if a bankrupt has been discharged from a judgment, or the debt on which it was recovered, an order must be entered canceling the judgment. Held, that where a bankrupt recited in his list of creditors that the residence of a judgment creditor was not known, and the only proof, in a proceeding to set aside the judgment after discharge, that the debtor knew the creditor's residence, was that he called at the creditor's house nearly three years before the petition in bankruptcy was filed, such evidence was not sufficient to show fraud in listing the creditor's claim to justify a refusal to set aside the judgment. Laughlin, J., dissenting. Appeal from special term, New York county. Application by Samuel Mcllner to cancel a judgment after petitioner's discharge in bankruptcy. From an order denying the application, petitioner appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. G. C. Peters, for appellant. O. W. Ehrhorn, for respondent. PATTERSON, J. On the 20th of February, 1901, the appellant. was discharged by a decree in bankruptcy from all debts and claims. which were provable against his estate and existed on the 5th day of January, 1901. A year having elapsed from the date of his discharge, he made an application, under section 1268 of the Code of Civil Procedure of the State of New York, for an order directing. that a judgment which had been recovered against him by one John A. Moore be canceled and discharged of record. That judgment was docketed in the office of the clerk of the county of New York on and 112 New York State Reporter the 11th day of May, 1900, and there can be no doubt that the judgment and the debt upon which it was founded were provable in bankruptcy, and that the appellant was discharged therefrom, unless for some reason the judgment and the debt were excepted from the operation of the discharge. The application to cancel the judgment was resisted by Moore, the judgment creditor, and was denied at the special term, and from the order entered upon such denial this appeal is taken. It is contended that the discharge was ineffectual to release the appellant from his indebtedness to Moore, for the reason that such indebtedness was not duly or properly scheduled in the bankruptcy proceeding. Section 17 of the bankruptcy law provides, in effect, among other things, that a discharge in bankruptcy shall release a bankrupt from all provable debts, except such as "have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy." Section 7 of the bankruptcy law provides, among other things, that it shall be the duty of the bankrupt to prepare, make oath to, and file in court a list of his creditors, showing their residences, if known; if unknown, that fact to be stated. In the schedule filed by Mollner in his bankruptcy proceeding, John A. Moore, the judgment creditor, is named as a creditor, but it is stated that his address was unknown. The allegation of Moore is that that statement was "not true or correct in fact," and that therefore the judgment debt was not properly scheduled, as required by the bankruptcy law, with the name and known address of the judgment creditor. It is nowhere directly alleged by Moore, nor is there any proof to show, that the statement that his address was unknown to Mollner was fraudulently inserted in the petition or schedule in bankruptcy. It is doubtful, under such circumstances, whether the discharge can be attacked collaterally in this proceeding. Section 1268 of the Code of Civil Procedure provides that if it appears upon the hearing that the bankrupt has been discharged from the payment of the judgment, or the debt upon which it was recovered, an order must be entered canceling the judgment. But if we assume that fraud in procuring the discharge would be a good ground for denying an application such as the present, there is no proof in this case that such fraud was practiced by the bankrupt. At the utmost, all that is shown by the respondent here is that in August or September, 1898, the bankrupt called on the respondent at the latter's house, No. 310 West Seventy-Eighth street, in the city of New York. Mollner knew, then, in August or September, 1898, where the respondent, Moore, lived; but nothing whatever appears in the papers to indicate that he had any knowledge of Moore's whereabouts or residence after September, 1898. Mollner's petition in bankruptcy was filed on the 5th of January, 1901. There is nothing whatever in the papers to show that at the time the petition was filed he knew that Moore still lived at the address. in West Seventy-Eighth street. There is nothing that would impute to him knowledge that Moore still resided at that place, unless Mollner is to be bound by a presumption that, if his creditor at |