12 F.2d 941 | N.D.N.Y. | 1925
This is a motion to dismiss an involuntary petition in bankruptcy on the ground of insufficiency. The original petition was filed by the trastee in bankruptcy of the Lion Manufacturing Company, and five creditors of that company also filed intervening petitions.
The petitioning and intervening creditors claim that Post, while an officer and director of the Lion Company, unlawfully diverted a large amount of the assets of the Lion Company to his own use and that of others, rendering the Lion Company insolvent. These, creditors of the Lion Company claim that they are also creditors of Post, the alleged bankrupt, because of section 15 of the Stock Corporation Law of the state of New York (Consol. Laws, c. 59) which renders Post liable for the loss sustained by reason of his acts as director of the Lion Company, and that Post is insolvent and has committed acts of bankruptcy. Post denies the insolvency in his answer, but admits some of the claims of the petitioning creditors as to diversion of property of the Lion Company, .but claims he paid value for some or all of it. Post contends that neither the petitioning nor intervening creditors are creditors of his and have no debts provable against him.
The petition shows that there is an insufficiency of assets of the Lion Manufacturing Company to pay the creditors the full amount of their claims, the allegation being that not more than 50 per cent, will be paid. Assuming such deficiency, Post will he liable to the creditors of the Lion Company for the balance of their claim, which is the “loss” sustained by said creditors under section 15 of Stock Corporation Law, if the allegation of Post’s wrongful acts be trae. Such claims
The fact that the exact amount.is not yet determined is not a bar. Grant Shoe Co. v. Laird, 212 U. S. 445, 29 S. Ct. 332, 53 L. Ed. 591; Remington on Bankruptcy, vol. 2, § 811; Williams v. U. S. Fidelity & Casualty Co., 236 U. S. 549, 556, 35 S. Ct. 289, 59 L. Ed. 713. The claims of the petitioning and intervening creditors have been proved and allowed in the Lion Manufacturing Company bankruptcy proceeding. It is not necessary that they be reduced to judgment.
The creditors are sufficient in number and amount. There are five intervening creditors and the trustee, representing one or more other creditors, and the amount of their claim for which Post is liable, if liable at all, is in excess of $500.
The trustee’s petition does not show excess of liabilities of the Lion Company over assets, which is necessary in order that claim against Post may arise; but the intervening creditors’ petitions do so show, and they may he taken for the benefit of all the petitions filed by creditors. In re Bolognesi, 223 F. 771, 139 C. C. A. 351.
Moreover, if necessary, the trustee’s petition may he amended as to nature and amounts of the creditors’ claims. Collier on Bankruptcy (11th Ed.) 462; Ryan v. Hendricks, 166 F. 94, 92 C. C. A. 78.
The motion to dismiss the involuntary petition for insufficiency must he denied, and the proceeding may proceed to 'trial by jury as demanded by the alleged bankrupt.
