1 F. 842 | S.D.N.Y. | 1880
This is an application to compel the bankrupt to execute necessary instruments to enable the assignee to make available, as assets of the bankrupt’s estate, a seat in the New York Stock Exchange held by the bankrupt at the time of the filing of his petition.
More than three years before this motion was made tho bankrupt was discharged. He has now appeared by counsel, and takes the objection that since his discharge he,is not subject to the summary jurisdiction of the court, nor can be compelled by an order in the bankruptcy proceeding to execute writings or instruments to enable the assignee to demand, recover and receive the property assigned. He also claims that in this case it was determined by the court that the seat in the stock exchange was not property to which the assignee is entitled. This decision is claimed to have been made in passing on the application of the bankrupt for his discharge.
An examination of the record, however, shows that the specifications of the opposing creditors were for wilfully and fraudulently omitting this item from his schedule, wilfully swearing falsely to the truth of the affidavit annexed to the schedule which omitted this asset, and wilfully swearing falsely in his examination that he had no other property than that named in the schedule. It is evident that the overruling of these specifications as not proved, and the granting of the discharge, were not a determination of the question whether or not the seat was an asset of the estate in bankruptcy. The charges were of willful and fraudulent concealment, and wilfully false swearing. And it is clear that, to find these charges proved, the court must have been satisfied that the bankrupt, knowing and believing that the seat was property to which his creditors were entitled, intentionally omitted it from his schedule, and wilfully swore falsely about it. The objection that the question is res adjudícala must, therefore, be overruled.
The objection that the bankrupt is liable to the summary order of the court, such as is now asked for, only before his discharge, is, I think, well taken. Revised Statutes, § 5604, provides: “The bankrupt shall at all times, until his dis
The argument' is still stronger against the exercise of the summary power to compel the execution of papers after the discharge, because this part of the section contains the words “until his discharge,” which seem designed to limit this very power. The provision cited above, from section 14, does not enlarge the power of the court. The provision in section 26 is evidently intended to give a remedy for enforcing the duty imposed on the bankrupt by section 14, which declares it to be his duty to make and execute all such necessary instruments at the request of the assignee. Construing them together as parts of a single law they are, it would seem, subject to the same limitation that the act required to be done is to be done during the pendency of the proceeding and before' -the discharge. The use of the word “debtor,” instead of “bankrupt,” in section 14, is relied on as giving that section a more liberal construction. But I cannot see how it has any such force. After his discharge the former bankrupt is no longer a “debtor,” any more than he is a “bankrupt.”
Motion denied.
