285 F. 649 | S.D.N.Y. | 1922
(after stating the facts as above). In Re Hollins, 229 Fed. 349, 143 C. C. A. 469, and 238 Fed. 787, 151 C. C. A. 637, the property was not in the possession of the receiver when the order of confirmation was signed. This fact was mentioned in each case as a ground for the absence of jurisdiction in the court. The order having restored the bankrupts to their rights and the court not. being in possession, no controversy could be justiciable here. Indeed, there being no adjudication, title had never left the bankrupts, and possession was all that the court ever could have had. The only question was, therefore, whether that possession extended beyond the property which had come de facto within the control of the receiver. Those cases do not, I think, go further than to hold that the receiver’s possession will not be regarded as extending beyond such property as he has reduced to immediate control. That, on second reading, appears to me to be the meaning of the opinions.
The case at bar is different; here the receiver got possession of the cottons in the completest sense possible and has never surrendered it. Before confirmation he got notice of the -petitioners’ claims and of Spitzer’s. Confirmation did not dispose of those claims, and did not
In re Winship, 120 Fed. 93, 56 C. C. A. 45 (C. C. A. 7), is not on all fours, because the petition was there filed and the proceeding commenced before confirmation. Still the supplementary petition, on which alone any relief could be granted, was filed after confirmation, and the court clearly treated the case as though that were the only relevant pleading. It is an authority for the view I take. In re Larkey (D. C.) 214 Fed. 867, was decided before In re Hollins, supra, and seems to be in conflict with it. The bankrupts having sublet, and the sublessees having entered, the receiver was not in possession; tire bankrupts had no more than a reverter. The case proceeded on the doctrine of constructive possession, based upon some dicta in the Supreme Court which must be deemed overruled in this circuit by In re Hollins, supra.
In Re Frischknecht, 223 Fed. 417, 139 C. C. A. 11 (C. C. A. 2), the property had never been reduced to possession any more than in In re Hollins, supra. In re Lytle, Fed. Cas. 8,650, has nothing to do with this situation.
The petition will be referred to the referee, to hear and report upon the relative claims of the petitioners, of Spitzer, if he does not withdraw, and of the alleged bankrupts.
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