In re Katz

216 F. 949 | D.N.J. | 1914

CROSS, District Judge.

The petition for review brings before the court an order of the referee to whom the cause was referred, dated April IS, 1913, directing the bankrupt tq account for and pay over to the trustee within ten days the sum of $12,007.43 belonging to the bankrupt’s estate, and found by the referee to be in his possession and under his control. The petitioner excepted to that order in six respects, the first two of which relate to the form of the trustee’s petition. The petition excepted to, however, was the original and not the amended one, as appears by reference made to its filing date in the. petition for review. To the trustee’s amended petition no specific exceptions appear; but if the exceptions are so directed that they could be held to apply to the amended petition, they would nevertheless have to be overruled, since its allegations are deemed sufficiently certain and specific to apprise the respondent of the claim made against him. The remaining four exceptions relate to matters upon which the referee has passed, with result unsatisfactory to the bankrupt, hence his appeal. Of that concerning the admission of testimony, it may be said that such testimony, if any, as was improperly admitted, was relatively immaterial and did not affect the referee’s decision; in other words, there was legal testimony amply sufficient to support his findings of fact.

In compliance with Order 27 of General Orders in Bankruptcy,¹ the referee by his certificate states that he has certified to this court the question presented, a summary of the evidence relating thereto, and the findings and order of the referee thereon. The summary of the evidence thus certified has not, so far as appears, been attacked in such manner as to bring to the attention of the court, for correction, any particular misstatement, defect, insufficiency, or error therein. However, and apart from that fact, all of the testimony taken by the referee was sent up by him and has been read and considered by the court upon this appeal, and the conclusion reached, without difficulty, that the order appealed from is supported by a preponderance of such evidence. Many glaring discrepancies and inconsistencies, and improbable and unreasonable statements, appear in the bankrupt’s proofs, a considerable number of which have been pointed out by the referee. When these are considered, and the fact kept in mind that he saw the witnesses and heard them give their testimony, the court would be loath to set aside, and indeed, under the authorities, would not be justified in setting aside, his order, except for gross and manifest mistake of law or fact, neither of which appears. I am not at all sure that, had I dealt with the case in the first instance, I would not have ordered the bankrupt to restore to the estate, a considerably larger amount than the referee has.

However, I am not called to pass upon that question. It is sufficient to say that in my judgment the order under review is supported by the clear weight of the testimony, and it will accordingly dn all respects be affirmed.

The attorneys for the bankrupt appealed from the judgment entered on the foregoing opinion to the Circuit Court of Appeals for the Third Circuit. They failed to prosecute the apjieal within the time required by the rules, and, on motion of the attorney for the trustee, the appeal was dismissed. A petition was then filed with the referee by the trustee, praying for an order to require the bankrupt to turn over to the trustee the sum of $12,007.43, and the referee allowed this order. The bankrupt disregarded the order, whereupon the trustee filed with the referee a petition asking that the bankrupt be certified to the District Court for contempt for failure to obey the order to surrender. The referee so certified. As a result of this certificate the court entered an order that the proceedings be referred to the referee as special master, to ascertain “what, if any, disposition the bankrupt has made of the moneys found to have been in his possession and under his control on April 13, 1913, and if any disposition has been made of such moneys, or if the condition of the bankrupt has changed financially since that time, then, if changed, In what way, and what are the reasons therefor, and to report the result of his examination and findings to this court.” After the usual recitals, and a summary of the specific issues raised by the petition and answer, upon which the order of reference was based, the following additional report was filed by Chandler, Special Master:

Findings of Fact.

The only witness produced was the bankrupt, who testified that he did not desire to change any of the testimony given by him at former hearings; that he has not in his possession the amount of money specified in the order or any part thereof; that he did not have the amount of money specified in the order, or any part of it, in his possession at the time the order was made; and that he has made efforts to comply with the order.

The order of reference to me is specifically directed to ascertain what dispositions the bankrupt has made of the moneys in his possession or under his control. He denied the money was In his possession when the order was 'made. He offered no testimony whatever concerning the moneys under his control.

Neither did he offer any testimony to show that his financial condition has changed, except that he is earning a salary of .$2,100 per annum.

My conclusions, as a result of this examination, are that the bankrupt has failed to show any reasons why he should not surrender the money, or sufficient reason why he should not be committed for contempt for his refusal to obey the order.

Conclusions of Haw.

In his opinion filed in this case Judge Cross found that the bankrupt had in his possession or under his control the sum of $12,007.48, which he was fraudulently withholding from his creditors on the 15th day of April and 16th day of June, 1913, and ordered this sum to be surrendered to the trustee. This question is therefore res adjudicata, and any testimony of the bankrupt to the effect that he did not have or control this money when the order was made is irrelevant. “Where, after a hearing upon a petition by the trustee to compel bankrupt to turn over assets, the referee ordered him to deliver to the trustee goods in a specified sum, and upon review the District Court approved and confirmed the order of the referee and ordered bankrupts to turn over the goods or pay a specified sum before a day certain, or if he did not to show cause on that day why he should not be punished for contempt, the District Court is not bound to make a new and independent investigation of the fact of the concealment of assets and of bankrupt’s present ability to comply with the order to turn over such assets to his trustee.” Kirsner v. Taliaferro (C. C. A., 4th Cir.) 29 Am. Bankr. Rep. 832, 833, 202 Fed. 51, 120 C. C. A. 305.

The bankrupt testified that he has been unable to earn or borrow a sufficient amount to comply with the order of the court. I am of the opinion that these facts, if they are facts, have no relevancy to the question of his ability to surrender money in his possession or under his control. The bankrupt’s testimony concerning his ability to raise money impresses me with the belief that he is endeavoring to make terms with the court, favorable to himself, In order to escape a full compliance with the order.