No. 135 | 2d Cir. | Jan 19, 1925
We feel assured that the order complained of was erroneous. We pass by the point that the motion was directed only against Mr. Cohen, as trustee, while the order affected injuriously Mr. Cohen individually, and we pass to the really important question as to whether, under the circumstances above shown, the court had any power or authority to enter a summary judgment against Mr. Cohen and award execution against his own proper goods.
Mr. Cohen had been discharged as trustee, the estate was closed, and the only method by which any further administration of the assets in bankruptcy, or of the bankrupt estate, could be effected, was by a reopening thereof pursuant to sections 2 (8) and 44 of the Bankruptcy Act (Comp. St. §§ 9586, 9628). In Re Graff, 250 F. 997" date_filed="1918-01-16" court="2d Cir." case_name="In re Graff">250 F. 997, 163 C. C. A. 247, we pointed out that, upon the settlement of an estate and the discharge of the trustee, “the estate was closed, there was no longer a trustee, and the power of the District Court in respect of the discharged trustee was exhausted.” The test of this matter is that upon the reopening of an estate the creditors have an absolute right to elect a new trustee; the old trustee is functus officio. See In re Graff, supra, and In re Rochester Sanitarium & Baths Co., 222 F. 22" date_filed="1915-03-09" court="2d Cir." case_name="In re Rochester Sanitarium & Baths Co.">222 F. 22, 137 C. C. A. 560.
Mr. Cohen, probably through inadvertence or forgetfulness, is accused of what is in effect disposing of a portion of the property in his possession as trustee contrary to law. While he was trustee, he was under the plenary power of that court of which he is an officer, and he could have been surcharged upon an accounting conducted in any fair manner, if he was not able to produce for the benefit of Weehsler the money in his charge. We agree with In re Cadenas (D. C.) 178 F. 158" date_filed="1910-04-26" court="S.D.N.Y." case_name="In re Cadenas & Coe">178 F. 158, that the trustee would be “amenable to the orders of the court, as he has not been discharged”; but this trustee has been discharged, and the power of the court over him is exhausted. By analogy our decision in respect of compositions (In re Hollins, 238 F. 787" date_filed="1916-12-12" court="2d Cir." case_name="In re Hollins">238 F. 787, 151 C. C. A. 637), is applicable. We have not before us the question as to what other remedies are open to Weehsler, Inc. The only question at bar is whether those remedies embrace a summary order against Cohen personally entered after his discharge as trustee. We hold that such a remedy does not exist. As to other possibilities, United States, for use of O’Brien, v. Sondheim (D. C.) 188 F. 378" date_filed="1910-08-08" court="D. Mass." case_name="United States v. Sondheim">188 F. 378, is suggestive.
Order reversed, with eosts.