183 F. 859 | S.D.N.Y. | 1910
Six months have expired since the ordei of confirmation was passed and entered, so that the composition may not be set aside. Section 13 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427]). The petitioner’s request that he may proceed against the bankrupts must be heard by Judge Hough, since it is an application to vacate his order. I will therefore dismiss that branch of the application without prejudice to an application to Judge Hough.
There remains, therefore, only the application to direct the referee, who is the disbursing officer of the court, to pay out of the deposit in
So far as there may be a surplus after paying expenses and the dividends of the scheduled claims, and those unscheduled but filed before the issue of the rule nisi, I agree with the referee that out of it he may pay the petitioner. The bankrupts were at least in error not to schedule the claim, and as between them, or their assignee and the'petitioner, any balance left from the deposit must go to the petitioner to the extent of his dividend. However, the petitioner should not share ratably with the other creditors if there is not enough to pay dividends to all the creditors who .received notice of the proceedings and were cited under the rule nisi. The procedure in compositions requires the bankrupts to make an offer of specific terms upon which the bankrupt shall have back his estate. He must get the consent of one-half of his creditors who have filed claims and deposit enough money to pay all of them who have been scheduled or filed claims up to that time. Re Fox, 6 Am. Bankr. Rep. 525. Then he may file a petition and compel the remainder to accept the terms if he can induce the court so to order. Perhaps it is his further duty to keep advised of any further claims filed before confirmation, and add to his deposit for those. As to that I say nothing. This being done, the referee sends out the notice and rule nisi to bring in all the creditors, and give the court jurisdiction to confirm. The petition and the accompanying papers, all on file,_ are the statement of the case for the bankrupt and of his claims against the persons cited. Now, it is quite fundamental in this as in any other judicial procedure that a person cited may rely upon the claim made against him as the limit of what the relief will be, if he
This disposes of any relief to the petitioner upon this petition. Whether he may sue the bankrupt elsewhere upon the offer of composition it is not necessary to decide. What he asks here is to share with the other creditors and that he may not do. The case is a hard one, and, if in justice to others the petitioner could have relief, he ought to get it, but to relieve him involves taking from others what was set aside especially in trust for them.
Let an order pass in accordance with this opinion.