98 F. 81 | S.D.N.Y. | 1899
The evidence is insufficient to warrant finding that the business conducted since April, 1897, at 339 G-rand street is assets of the bankrupt rather than the property of his wife. The bills of sale made out to her of all the goods in the store, item by item, dated April 1, 1897, are prima facie evidence of her title. The bankrupt had failed in September, 1895, owing all the debts named in his present schedules. He could not hold property, or carry on his business without subjecting the goods to immediate sale on execution. There is no reason, therefore, to doubt that the business was intended to be the property of his wife. The bankrupt managed the business under a power of attorney from her; and in their efforts to make a living by this business, he no doubt acted throughout as if the business were his own. But in all this there was nothing inconsistent with the wife’s lawful ownership of the business, or with their unity of aim and labor to win support for their family and gradually to
There is no evidence that the bankrupt himself contributed any capital towards the purchase of that business, either in 1897 or since. The conveyance of the assets of his previous business upon his failure more than a year and a half before, was made, as the testimony shows, on account of loans of money and indorsements by his brother Moses to the amount of $12,000, which the property conveyed was not sufficient to meet. As there is no testimony opposed to this, nor circumstances incompatible with its truth, it must be accepted as a fact. The loss of the moneys raised by Mrs. Freund by mortgage on her house to establish a business in Columbus avenue and Third avenue during that year and a half, tends to support the truth of the defendant’s testimony. I find, therefore, that the specification alleging the G-rand street business to be the property of the defendant is not sustained. And the same as respects the furniture to the amount of about $1,000 bought for his wife about 26 years ago which presumably was intended as a gift to her at that time. To make this a ground for withholding a discharge, it would be necessary to find that this was knowingly and fraudulently concealed from the trustee, constituting a criminal offense punishable by imprisonment (Bankr, Act, § láb, subd. 1; Id. § 29b, subd. 1); or else that the bankrupt made knowingly and fraudulently a false oath in reference to it. Beyond the mere omission of this property from the schedules, there has been no concealment. After this length of time the furniture must be of comparatively little value; and whatever its value, it was probably and naturally regarded as the wife’s, so that whether strictly her property or not, the circumstances do not warrant finding its omission from the schedules to have been a fraudulent concealment constituting a criminal offense.
The discharge should, therefore, be granted.