191 F. 369 | E.D.N.Y | 1911
At the first meeting of creditors herein, an attorney, who had shortly before filed for proof a number of claims, was nominated and elected for the office-of trustee. No other nominations were made, and all other claims represented at the meeting voted for this nominee. It appears, however, that a clear majorily in number and amount was constituted by the claims voted under powers of attorney, by the person elected trustee. In other words, the person chosen cast a majority of the votes for himself. Under these circumstarices, the referee disapproved of the election and immediately appointed another gentleman as trustee.
“Competent to perform the duties of that office.” Bankr. Law, July 1, 1898. c. 541, § 45, 30 Stat. 557 (U. S. Comp. St. 1901, p. 3438).
In the case of In re Van De Mark (D. C.) 175 Fed. 287, the same principles are enunciated, and it is necessary to consider but one further point.
In the present case, the trustee elected was also an attorney at law, and therefore was in a position to charge a fee to the creditors whose ■claims he presented for whatever legal services he might render them. The present statute, as amended by Act Feb. '5, 1903, c. 487, 32 Stat. 797 (U. S. Comp. St. Supp. 1909, p. 1317), provides in section 72 that ■the trustee, shall receive no compensation under any guise whatever, other than the allowance provided by the statute. It is urged that an attorney is presumed to be paid for his services by his client, and that •in the present instance the trustee would therefore receive his trustee’s •commission, and also, presumptively, compensation from his clients for the work done.
It would seem, however, that the presumption would be the other way. Clients could hardly be expected to pay as individuals for work done by their attorney while representing others, and especially where the trustee would be presumed to obey the law and avoid seeking payment for work done as. trustee, except in the method authorized by the statute.
The certificate of the referee will be returned, with a direction that the trustee elected by the creditors be appointed by the referee, unless the referee determines that he is not a competent person to fairly represent the creditors as a whole in this proceeding, under which circumstances a new election must he called.