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IN RE MCCARTHY

DISTRICT COURT, W.D. NEW YORK


July 31, 1934

In re McCARTHY

The opinion of the court was delivered by: KNIGHT

KNIGHT, District Judge.

Judgment was recovered against the bankrupt herein for personal injuries sustained by reason of the negligent operation by the bankrupt of his automobile. A garnishee execution was issued on such judgment and bankrupt now seeks an order restraining the judgment creditor and the sheriff of Erie county from receiving further money under such execution. The judgment creditor objects to the granting of such motion on the ground that the injury was willful and malicious and therefore not dischargeable.

The complaint does not allege and the record does not show that the damages were sustained by reason of any willful and malicious act of the bankrupt. This court has held under a parallel state of facts that a judgment such as obained here is dischargeable. In re Kubiniec (D.C.) 2 F. Supp. 632. This view is sustained by many authorities. Tinker v. Colwell, 193 U.S. 473, 24 S. Ct. 505, 48 L. Ed. 754; Lewis v. Roberts, 267 U.S. 467, 45 S. Ct. 357, 69 L. Ed. 739, 37 A.L.R. 1440; In re Harber (C.C.A.) 9 F.2d 551; In re Vena (D.C.) 46 F.2d 81; In re Madigan (D.C.) 254 F. 221.

 Motion granted.

19340731

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