In re Bryer, No. 80

No. 80 | 2d Cir. | Jan 24, 1923

ROGERS, Circuit Judge

(after stating the facts as above). When this case was before this court before (281 F. 812" court="2d Cir." date_filed="1922-05-22" href="https://app.midpage.ai/document/in-re-bryer-8826117?utm_source=webapp" opinion_id="8826117">281 Fed. 812), the sole question presented was whether the bankrupt, who had made an offer of composition, had the right as matter of law to withdraw his offer of composition. We then declared that the solution of the question then presented depended upon the construction of the statute, and we said that we were satisfied that the statute did not intend that a bankrupt, or an alleged bankrupt, should have the right to withdraw his offer of terms of composition, irrespective of the consent of creditors. That was the only question before us, and it was the only question we expressed any opinion upon.

Counsel for the petitioner seems to think that the order of June 5, 1922, which directed the Public National Bank to return to the receiver the sum of $4,000, with accrued interest, which had been deposited in that bank for the purpose of a composition and “subject to the further order of the court,” constituted in some way a violation of the order and mandate of this court. But in this he totally misapprehends what this court decided. We decided nothing more than that a bankrupt could not, as matter of right and irrespective'of the consent of creditors, withdraw an offer of composition.

The question which is now raised is a totally different one. We are now in effect asked to hold that,-where a composition offer has been made, and money has been' deposited in a designated depository for the purposes of a composition, and which money is held “subject to the further order of the court,” the party who furnished the composition money cannot be permitted by the District Court to withdraw the money that he advanced. The order of June 5th did not require the composition money to be paid to the bankrupt. The application for the order was made by the receiver, who prayed that the money should be turned back to him; he representing that there was no possibility of the composition being consummated.

It does not appear why or how the receiver had furnished this $4,-000. The presumption would seem to be that the District Court permitted him to furnish it. There certainly is no reason known to us which prevents that court from permitting him to take it back into his possession, at least when it appears to the satisfaction of the court that the composition was not to be consummated. As it appears to us there is nothing in the statute, or in the adjudicated cases, or in any principle of law with which we are familiar, which supports the claim that the motion to vacate the order should have been granted.

The order is affirmed.