In re Cohen, No. 268

No. 268 | 2d Cir. | Jun 14, 1913

LACOMBE, Circuit Judge.

The objecting creditor filed several specifications of objection to discharge. The special commissioner, as it seems to us quite properly, overruled all of them, except the single one now before us, viz., that the bankrupt had knowingly and fraudulently concealed property belonging to his estate. The property in question is a stock of tinware, etc., of the value of about $2,000 in a store on Staten Island, where the bankrupt has recently been conducting business, as he alleges for his elder brother, who has several similar stores on the Island. Prior to 1908, the bankrupt, then 22 years of age, was in partnership with one Phillips, six years older, in a retail shoe business. It is the theory of the objecting creditor that, when the firm of Phillips & Cohen went out of existence in 1908, the bankrupt put the proceeds.of its stock, or part thereof, into this tinware and crockery business, which he has since been engaged in.

[1] The special commissioner reached this conclusion, although.the most he finds is that he has a “strong presumption” that the bankrupt has an interest in that business. • The evidence is the other way. The bankrupt and his brother Samuel both testify that, after the failure of the shoe business, Samuel put his brother into the store which he (Samuel) had ^already established in order to give him something to do and a chance to make enough out of it to support bankrupt and his wife. There is no evidence to the contrary. The special commissioner finds the story of the bankrupt and his brother “inherently’’ improbable.” We see nothing improbable in the circumstance that his partner, Phillips, with whom he had disagreed and had had controversies, should, when it was evident the business was going to pieces and without the knowledge of his younger partner, sell the entire stock to an •auctioneer and disappear with the proceeds. Nor is there any improbability in the circumstance that Phillips’ whereabouts is not known to his family and that they think he is dead; nor in the further circumstance that the bankrupt himself — without money and with a brother willing to take him into his store and let him ‘earn a living out of it, if he could — failed to “pursue” his disappearing partner. Still less do we see any improbability in the bankrupt’s elder brother doing this much for him after his shoe business went to smash. Other brothers have sometimes acted the same way under similar circumstances.

As to the statement of the bankrupt, so much relied on, made to one Cooper when bankrupt bought some crockery from him, viz., that the business was his: lie was making the purchase from Cooper, not to replenish his brother’s stock, which was mainly agate ware, but for himself, to do a little peddling of crockery on the side as an independent speculation. It is certainly not improbable that, in order to get it on his own credit, he told Cooper that the store was his. The evidence warrants the conclusion that he lied to Cooper to get credit, but certainly falls far short of proof that he did in fact own the business.

There may be some features of the transactions between the brothers difficult to understand, and perhaps open to suspicion; but they are both entirely uneducated, doing business on a very small scale, principally in the way of, peddling, and the bankrupt is very young. No attempt was made by the trustee to get this property for the estate, and so establish the ownership one way or the other, and the estate has since been wound up.

[2] The burden of proof of his objection lies upon the creditor, and he has failed to sustain it.

The order should be reversed.