106 F. 496 | S.D.N.Y. | 1901
The creditors’ petition filed December 3, 1900, alleges that the firm of Grant Bros., stockbrokers, consisted of Frederick and Charles F. Grant and John K. Van Sickle; that, the firm on November 12, 1900, was insolvent and made an assignment for the benefit of creditors; and that Van Sickle, also being insolvent, within four months preceding, conveyed his property or some part thereof to George H. Klein for an antecedent debt, with intent to prefer said alleged creditor. Van Sickle alone answered the petition, denying that he was a member of the firm, that he was insolvent, or that he had conveyed any property with intent to prefer.
1. There seems to me no doubt upon the evidence that Van Sickle was a partner with the two Grants, not only as to creditors, but as between themselves. Prior to January 1, 1897, he had been employed by Frederick Grant in various capacities. At that time the firm was reorganized, to consist of Frederick Grant, Charles F. Grant and Van Sickle. There were no written articles; but in August, 1897, a certificate was filed with the county clerk bearing date January 1, 1897, signed by all three and stating that they were members of the co-partnership under the name and style of Grant Bros., and this certificate was published for four weeks in the Law Journal. A formal public announcement was also made to the same effect, and-a circular therefor was prepared, signed and sent out by Van Sickle himself; and business cards to' the same effect were prepared from a draft in Van Sickle’s own handwriting, stating him to be a member of the firm. He was also introduced as a partner to the officials of the Bank of the State of "New York, as authorized to draw the firm funds, and the business was afterwards so transacted. By the verbal arrangement he was entitled to 10 per cent, of the profits and $3,000 a year. His drawing allowance was the same as that of the other partners, and Mr. Van Bickle has given no testimony to show that he was not a partner.
2. The just claims of the petitioning creditors are established.
3. The general assignment by Grant Bros, for the benefit of creditors on November 12, 1900, was executed only by Frederick and Charles F. Grant. At that time Van Sickle had designedly left this jurisdiction. The assignment had however been previously a matter of discussion, and Van Sickle himself had advised it. Considering this advice and the circumstances of his absence, I am inclined to the opinion that he should be deemed to have assented to it sufficiently to make it a valid assignment of the firm’s assets. Welles v. March, 30 N. Y. 344. But whether the assignment was valid or not, it was an act of bankruptcy as respects Frederick and Charles F. Grant. In re Meyer, 39 C. C. A. 368, 98 Fed. 976. Van Bickle also committed an act of bankruptcy in transferring considerable property to his father-in-law Klein, as stated in the petition, within four months of the bankruptcy proceeding, in consideration only of an antecedent debt which under the circumstances must be held to have been done with the intent to prefer him and make him secure. Being a mem
The proper marshalin'g of assets in such cases requires the adjudication of all in one proceeding and the appointment of a single trustee of both the individual and the joint assets.
The adjudication is decreed against all three.
