In re Kalmanowitz, 211 F. 167

In re Kalmanowitz

211 F. 167 | E.D.N.Y | 1914

CHATFIEDD, District Judge.

[1] The proceeding as originally instituted combined a claim that the present business conducted by the wives of the bankrupts was really a subterfuge for the concealment of assets to which the creditors of the bankrupts were entitled, with a claim that the bankrupts had concealed the assets of their previous business.

The report of the special commissioner and the previous record show that any concealment of assets was by the bankrupts themselves. The proceeding can be maintained, therefore, only as one to compel the bankrupts to turn over or account for the assets which they previously possessed, and the proof does not justify an order (in place of an equity action) taking the property in the hands of the wives, upon the theory that their tit-le is fraudulent. To this extent the report of the commissioner should be confirmed.

[Z] As to the application to compel the bankrupts to turn over property, neither the report of the commissioner nor the proofs show accurately just what and how much property was concealed; and, while the finding that the bankrupts have not explained the disappearance of what assets they appear to have had is supported by the testimony, it is impossible to make an order directing them to turn over any specific amount, or any definitely described assets.

[3] If the object sought is to obtain an order directing the bankrupts to disclose what they did with the property which has disappeared, then the present record would justify an order directing further accounting, and punishment for failure to account might follow. If', however, the creditors undertake the burden of proving that cer*169tain assets have disappeared, and seek to recover those assets or their value, they must present evidence clearly establishing a minimum value at least. They cannot supply the lack of proof by seeking to get the bankrupts liable to imprisonment for failure to obey the orders of the court.

[4] Punishment for failure to satisfactorily account for assets (unless prescribed and prosecuted under the criminal statutes) can be imposed only as a result of a contempt proceeding. In a proceeding to compel the turning over of property, however, some definite order, that some describable assets should be turned over,- is necessary before contempt of that order can occur. The two proceedings should be kept distinct.

In the present matter, the creditors will be allowed to take further testimony, or present definitely to the court proof of just what property it is now alleged the bankrupts concealed. Owing to the changes upon these issues (as shown upon the argument of the motion) from the questions of fact passed upon by the commissioner, his findings upon these questions will be disregarded, and the issue of what property the bankrupts should be ordered to turn over, or for which they must account, will be taken up on the complete record, including the testimony now ordered taken.

The bankrupts and any other witnesses desired will be ordered to appear in court to proceed with the hearing.