196 F. 357 | 2d Cir. | 1912
(after stating the facts as above). There is no occasion to go back of the order of June 22, 1911, or to inquire into its propriety. No appeal was taken or petition to review filed, and appellant here concedes that it lays down the rule for distribution in this case, and announces that he has no criticism to make as to the propriety of that rule. That is to say, although in his opinion the facts did not warrant the adoption of such a rule, he is willing to accept it and let the case be disposed of in conformity to its terms.
It provides that the claim of Gaines allowed at $325,000 be modified to the extent that so much of it as repj-esented indebtedness which existed September 3, 1908, $199,000 be postponed to the claim of the Wynkoop Company. This is a very simple proposition. There is to be no dividend paid to Gaines on account of the $199,000 until dividends shall have been paid to the Wynkoop Company sufficient to pay their claim in full. In other words, so far as these two interests are concerned, the situation is the same as if no claim for the $199,000 had ever been proved.
Of course, this order did not affect the Gaines’ claim, even as to the $199,000, except so far as the Wynkoop Company was concerned. The whole claim $325,000 was a proper one against the estate duly allowed and must figure, as such in determining the amount of dividend payable generally. This we understand was done, and upon that basis a dividend of 3%. per cent, was declared generally. Upon the payment of 3% per cent, on their several claims to all the creditors other than Gaines and the Wynkoop Company there remained
This sum should be distributed between Gaines and the Wynkoop Company on the special adjustment prescribed for them; that is to say, with all the claims of Gaines for dividends on $199,000 postponed to Wynkoop Company; that is, substantially eliminated — treated as if they were nonexistent. This will leave these two to divide the residue proportionately to their real claims: Gaines $126,000, Wynkoop Company, $25,000.
It is easier to do the figuring in round numbers, assuming:
Gaines ... $125,000
Wynkoop Co..... 25,000
$150,000
Of these claims Gaines holds five-sixths and the Wynkoop Company one-sixth. The residue should be divided in the same proportion:
5/6 to Gaines... $10,208 33
1/6 Wynkoop Co.. 2,041 67
$12,250 10
The difficulty with the plan followed by the District Court is, first, that it does not accord with the order of June 22; and second, it takes money awarded to Gaines as a dividend on his claim of $199,000, and turns it over to the Wynkoop Company, as damages for a tort, which we think the bankruptcy court has not jurisdiction to do. The company can take that cause of action to a state court and try it there. This we understand it has done.
The order is reversed and cause remanded, with instructions to distribute the balance of dividends $12,250 or whatever it may be in accordance with the views expressed in this opinion.