97 F. 29 | S.D.N.Y. | 1899
The issue in the creditors’ suit is not identical with that presented under the specifications in opposition to discharge. A decision adverse to the defendants in the creditors’ suit would not necessarily determine the right to discharge. If one of the intents of the assignment of April 13, 1896, was to hinder payment of the existing suit, that would authorize a decree for the plaintiff and yet be no sufficient ground to deny a discharge under the bankrupt act. To have this effect there must be evidence of concealment of property from the trustee. Section 29. This can only be made out by evidence of some remaining property in trust for the bankrupt’s use existing at the time of the petition in bankruptcy. The specifications do not in terms charge this; but assuming them to be sufficient to raise the question, the evidence (all of which is returned to me, after the hearing was closed) proves sufficiently that the assignee, Frank Cornell, had paid out considerably more than all the value acquired by the assignment, and has been even allowed a claim of $5,000 and upwards for still further advances to the bankrupt, which shows clearly that there was no property of the bankrupt remaining, or concealed by him, at the time of the petition. The specifications are therefore disproved, and the discharge is granted.
