4 F. 519 | S.D.N.Y. | 1880
This is an application for the discharge of the bankrupt. The discharge is opposed on several grounds:
1. It is objected, first, that the bankrupt has not obtained
2. It is also objected that the bankrupt, being a merchant or tradesman, did not keep proper books of account. The bankrupt was a theatrical manager. It did not appear that he had any other business. He bought costumes, machinery, etc., for use in his business. It was also shown that on a few occasions he had sold some such property. I think he cannot be considered a merchant or tradesman within the meaning of the statute. The case of In re Odell, 17 N. B. R. 73, is relied on by the opposing creditors. That was the case of a keeper of a livery stable. He was, under the peculiar circumstances shown in respect to his business, held to bo a merchant or tradesman. It was held that, in connection with his business of keeping a livery stable, he was also engaged in the business of buying and selling horses, and food for horses. The present case is essentially unlike that. I cannot find on the evidence that this bankrupt made the selling of anything a regular part of his business, as was the case in In re Odell. The sales that he made were isolated transactions, and not, as in Odell’s case, within the regular scope and purview of the business he undertook to carry on.
3. It is also objected that the bankrupt, in contemplation of bankruptcy, made certain fraudulent transfers of his property to his father, John A. Duff, and to one Banvard, his landlord, with intent to prefer them as creditors, and to prevent his property from coming to the hands of his assignee, and being distributed among his creditors. The transfers thus attacked were in March, 1878. The petition was filed August 31, 1878.
The fact that the bankrupt, then, did not intend or expect to go into bankruptcy, if he is to be credited in that respect, does not relieve the act from being considered an act done “in contemplation of becoming bankrupt” within the meaning of the statute. That expression means, as has often been held, in contemplation of committing an act of bankruptcy. Such a transfer is in itself an act of bankruptcy, if made, as this appears to have been, with intention to cover up his property from his creditors, and to prevent its distribution among them. He claims to have had great expectations of success with a play to be presently brought out. Over-sanguine hope of better business may sometimes justify great present sacri