34 F.2d 78 | E.D.N.Y | 1929
This is a , motion to punish tbe bankrupt for contempt and comes before tbe court on an order to show cause.
The trustee made an application to tbe referee for an order directing tbe bankrupt to turn over to tbe trustee $73,812 assets unaccounted for.
Tbe referee made an order directing tbe bankrupt to turn over to tbe trustee $34,-152.11.
The bankrupt filed bis petition with tbe court to review tbe said order of tbe said referee, and it was beard before Hon. Robert A. Inch, one of tbe judges of tbis court, who dismissed tbe petition for review and affirmed that order.
From that last-mentioned order no appeal was taken.
Tbe referee bas filed bis certificate that tbe said bankrupt bas committed tbe contempt for disobedience of said order, and praying for an order punishing said bankrupt for said contempt.
Tbe bankrupt bas appeared in opposition to tbis motion, and affidavits bave been filed on bis behalf, by which be seeks to bave tbis court re-examine tbe evidence on which tbe turnover order was granted, but that cannot be done as tbe only evidence tbis court can consider on behalf of tbe bankrupt on tbis motion is evidence of something that bas happened since tbe time to which the turnover order relates, showing that there bas newly arisen an inability on tbe part of tbe bankrupt to comply with tbe turnover order. In re Lans (C. C. A.) 158 F. 619, 19 A. B. R. 458; In re Stavrahn (0. C. A.) 174 F. 330, 23 A. B. R. 168, 29 Ann. Cas. 888; In re Weber (C. C. A.) 209 F. 494, 29 A. B. R. 217; In re Silverman (C. C. A.) 11 F.(2d) 970, 8 A. B. R. (N. S.) 5; In re Oriel (C. C. A.) 23 F.(2d) 409, 11 A. B. R. (N. S.) 363; In re Prela (C. C. A.) 23 F.(2d) 413, 11 A. B. R. (N. S.) 370.
That tbe order to turn over was made, after bearing, by tbe referee, and on a petition to review was affirmed, after bearing, by tbe District Court, that no appeal was taken from that order, and that tbe said order to turn over bas not been obeyed by the bankrupt, is not disputed. Tbe bankrupt bas been fully beard on tbe motion, and no facts bave been shown to account for the disappearance, subsequent to tbe date to which tbe turnover order relates, of any part of tbe assets which tbe bankrupt was adjudicated by tbe turnover order to bave bad in his possession and was ordered to turn over.
Inability on the part of the bankrupt to comply with tbe order is a matter of defense, and it is not sustained by attacking tbe order of tbe referee, affirmed on review by tbe District Court, which found that tbe bankrupt had the money in bis possession at that time.
That order is a binding adjudication, from which no appeal bas been taken, and I must proceed in accordance with that adjudication, on tbe presumption that, tbe bankrupt having been found to be in possesison of that sum at tbe time-to which such order relates, be continued in possession.
Tbis presumption bas not been rebutted by any- evidence of any happening subsequent to the time to which tbe order to turn over relates, which makes obedience to such order impossible, and -I am therefore constrained to find that tbe bankrupt bas not sustained bis contention of inability to comply with tbe order to turn over, but, on tbe contrary, that it appears that be is able to comply with said order.
Tbe bankrupt is therefore found guilty of a civil contempt and will be committed to the
The term of this court at which the order hereon is made will be extended one year.
Settle order on notice.
