108 F. 791 | S.D.N.Y. | 1901
The principal business of this corporation being evidently that of boarding horses for their customers, including the complete care of them, and also the care of wagons, harness, coaches, etc., I should have hesitated, if this were an original question, to consider this corporation as principally engaged in “trading or commercial pursuits” within section 4b of the bankruptcy act, as the business does not involve, except to a very minor degree, any direct sale of the hav, feed, grain, etc. In re New York & W. Water Co. (D. C.) 98 Fed. 711, 713, 714, 3 Am. Bankr. R. 508; In re Elk Park Min. & Mill. Co. (D. C.) 101 Fed. 422; In re Rollins Gold & Silver Min. Co. (D. C.) 102 Fed. 982, 4 Am. Bankr. R. 327. But in construing the phrases of the áct of 1898, reference is constantly made to the preceding bankruptcy acts and to the construction given to similar phrases therein used. In the Case of Odell, 17 N. B. R. 73, Fed. Cas. No. 10,426, in this district, Mr. Justice Blatchford construed the words “merchant or tradesman” in the act of 1867, as including livery stable keepers, considering that the purchase and supply of hay, oats, feed and grain (which are the principal items in this business), and receiving pay therefor in the compensation paid for the board of horses, was equivalent to a sale of the food and constituted “trading.” This is no doubt a somewhat liberal construction of the word trading; but as this was the established construction under the former act and has, so far as I know, never been dissented from, and as the business is in general so closely allied and analogous to trading or commercial pursuits, I think I should follow the former construction as the learned referee has done, and confirm his report, leaving to the contestants the burden of any review by appeal, should that be desired.
The report is confirmed.