#### Barstow, appellant, v. Hansen.

*Answer—supplemental of dischmge inlcmkruptcy—Laches—what constitutes.*

Plaintiff obtained judgment by default. Defendant obtained leave to answer, but the judgment was permitted to stand as security. Defendant after this was discharged as a bankrupt under the provisions of the United States bankrupt law. Subsequently a trial was had, and a verdict rendered for defendant, which was set aside by the court. Defendant then, more than five years after the discharge in bankruptcy had been granted, obtained an order allowing him to set up such discharge by way of supplemental answer without prejudice to any lien the plaintiffs had upon any real estate under or by virtue of their judgment.

*Held,*(1) that the provision in the order that the same should be without prejudice to the lien of plaintiffs’ judgment was inconsistent with, and defeated by, the permission therein to set up the discharge as a defense; and (2) that defendant had been guilty of such laches as to deprive him of the right to set up the discharge, and the order was improper.

Appeal from an order at the special term allowing a supplemental answer. . The action was brought by Edwin W. Barstow and others against Hans J. Hansen and others upon a promissory note. The necessary facts fully appear in the opinion.

*Mrastus OooTce,*for appellant.

*FranTc Rudd,*for respondent.

*570Daniels, J.

This action was brought to recover the amount of a promissory note made by the defendants. Judgment was recovered in it by default on the 6th day of July, 1866. Upon a motion afterward made, the defendants secured leave to answer, but the judgment was' permitted to stand as security for the plaintiffs’ demand. The answer was served on or about the 13th of November, *1867,*and the defendant Hansen was discharged as a bankrupt on the 36th of October, 1868. In February, 1871, a trial was had on the issue joined by the answer so served, and a verdict recovered by the defendants, which was set aside by the justice holding the circuit. As the cause was about to come on for trial again, and on the 13th of June, 1874, an order was procured, on the part of the defendant Hansen, for the plaintiffs to show cause why he should not be allowed to Set up his discharge by way of supplemental answer; and, upon the hearing of the motion, the order appealed from was made, allowing that to be done, without prejudice to any lien the plaintiffs had upon, any .real estate, under and by virtue of their judgment standing as security.

This reservation seems to have been made in view of the protection given to creditors’ liens upon the bankrupt’s property by virtue of section 30 of the Bankrupt act, 14 U. S. Stat. at Large, 536. That section secures to the creditors the benefit of a legal lien; although, beyond that, the debtor, may be discharged from the residue of the debt, under the other provisions of the act; and it was, apparently, for the purpose of preserving the advantage secured in that respect, by the entry of the judgment, that this clause was inserted in the order.

The object seems to have been to carry out the intent of this provision by allowing the debtor to defeat the recovery of the debt so far as it should prove unsecured by the lien, and at the same time secure to the creditors all that they could collect after establishing their claim, as a legal demand at the trial of the cause by means of enforcing such lien. But this- the order did not accomplish. For if the discharge should prove to be valid, it would completely defeat the creditors’ right to recover any portion of the debt, as the order has allowed it to be pleaded.

That must necessarily subvert the judgment, and the lien as well, because that is simply one of its incidental consequences. Both objects mentioned in the order cannot be attained by means of its provisions. The discharge of the debt must abrogate the lien, *571which the judgment has created for its payment, for without the debt there can be no judgment.

E this result had been manifested when the order was made, it would probably have been refused, because the court seems to have been actuated with the purpose of first securing the’plaintiffs the full benefit of the lien, acquired by virtue of their judgment, and after that allowing the defendant to avail himself of his discharge.

This was in harmony with- the equity maintained by the section of the bankrupt law already cited, and it would have preserved the substantial rights of both debtor and creditors if it could have been rendered successful. But as both results cannot be secured, the order ought not to be allowed to stand, particularly as the affidavit of the plaintiffs’ counsel affirms the Hen to be on sufficient property to pay the entire amount of the debt.

It Would contravene the policy of the bankrupt law to aHow the discharge to be made usé of, in such a way, as to defeat the security afforded, by means of alien which if properly enforced would result in satisfying an honest debt. There is no justice in depriving the creditors of the Hen which they have acquired by their diligence, as long as the act under which the defendant procured- his discharge has provided for its protection and satisfaction out of the debtor’s property. And that injustice wiH be done under this order, *ii*the discharge can be used by means of a supplemental answer, for the purpose of defeating the action brought to recover the debt.

. The Hen already acquired cannot survive the establishment of that result. In this respect, the order seems to have been made under a misapprehension as to the effect it would have upon the rights actually acquired by the creditors. For it is evident that it was supposed that the discharge could be used as a defense, without impairing the creditors’ Hen, so far as it had attached to the property of the bankrupt. Without that conviction, it may be reasonably inferred from the terms of the order, that it never would have been directed.

But aside from this infirmity in the reHef provided, the lapse of time was so great between the period when the discharge "was granted, and the appHcation for leave to plead it as a defense, that the motion should have been denied. for that reason. ■ The intervening time exceeded five years and, during its continuance, a trial of the action was had without the least effort on the part of the *572defendant to avail himself of the discharge or for leave to. allege it • as a defense to the action.

In the case of *Medbury*v. *Swan,*46 N. Y. *200,*the delay did not exceed fifteen months, and yet the court, for that reason, in the exercise of its discretion, denied the defendant’s motion for leave to present it as a defense "by way of supplemental answer. This court in this department affirmed that order, and its action in that respect received the approval of the court of appeals where it was declared that the defendant’s delay was unanswerable, and no attempt had been made to excuse it.

An attempt by way of excuse was made in the affidavit, by which the motion in this case was supported. But it was of so lame and impotent a character as to deserve no serious consideration. It conceded the -neglect and endeavored to excuse it by information derived from the clerk of the defendant’s attorney. "Under the circumstances of this case, the defense proposed would be improper and unjust. It would have the effect of defeating the security for the plaintiff’s debt, fairly and lawfully acquired, which the design and policy of the bankrupt law has entitled them to enforce. And it would award to the defendant that relief which, by his negligence, he has deprived himself of all right to demand. The order appealed from should be reversed, with $10 costs, and the disbursements incurred by this appeal.

*Order reversed.*