In re Lenweaver

| N.D.N.Y. | Oct 11, 1915

RAY, District Judge.

The special master to whom this matter was referred finds and reports- that the bankrupt, when under examination, refused to answer questions, but does not find that such questions were material. As to retaining money, the special master finds that certain moneys have been retained by the bankrupt and not paid .over;' but he fails to find whether or not such moneys were concealed from the trustee in bankruptcy.

Under section 14b, subd. 6, to justify the refusal of a discharge on the ground of a refusal by the bankrupt to answer questions, it must appear that in the course of the proceeding in bankruptcy, and while being examined, of course, the bankrupt refused “to answer any material question approved by the court.” It must appear that the court (referee in this case) approved the question propounded, and that then the bankrupt refused to answer, and that such question was material.

Under section 29b, it must appear that the bankrupt knowingly and fraudulently “concealed while a bankrupt, or after his discharge, from his trustee, any [some] of the property belonging to his estate in bankruptcy.” If this bankrupt had in his possession property belonging to some third person, it would not deprive him of a discharge that he did not deliver it to such third person. Under section 14b (4), a discharge will be refused if the bankrupt, “at any time subsequent to the first day of the four months immediately preceding the filing of the petition, transferred, removed, destroyed, or concealed * * * any of his property with intent to hinder, delay or defraud his creditors.”

As the findings and report of the special master are not specific and definite on these subjects or questions, the matter will be referred back to the special master to make and report more specifically, viz.: (1). What were the questions which the bankrupt refused to answer, and were they or any of them, material, and were they first approved by the court at or during the examination? (2) Did the bankrupt knowingly and fraudulently conceal while a bankrupt from his trustee in bankruptcy any of the property belonging to his estate in bankruptcy, and, if so, what property? and (3) during the four months immediately preceding the filing of the petition did the bankrupt transfer, remove, destroy, or conceal any of his property with intent to hinder, delay, or defraud his creditors ?

In view of the specifications of objection to the discharge on file, it' is impossible for this court to make a just and proper determination until the master has made and reported specific findings, the one way or the other, on these questions. I assume the omission was inadvertent, but, nevertheless, as the report and findings now stand, the conclusion of the- special master that a discharge should be refused cannot be sustained.

There will be an order accordingly referring the matter back to the master for specific and definite findings as indicated.