Rosenblum v. Marinello

Decision Date19 February 1943
Docket NumberNo. 184.,184.
Citation133 F.2d 674
PartiesROSENBLUM v. MARINELLO.
CourtU.S. Court of Appeals — Second Circuit

Harold D. Toomey, of Mt. Vernon, N. Y. (Frank H. Connelly, Jr., of Mt. Vernon, N. Y., of counsel), for appellant.

Ivan S. Skura, of White Plains, N. Y., for appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

PER CURIAM.

Following an accident on July 7, 1940, in which an automobile driven by the bankrupt was involved, he was threatened with personal injury actions. He then had on deposit in a savings bank account the sum of $3,274.93, the accumulation of some eighteen years of saving. Between July 16th and 29th, 1940, he drew out this entire sum and admits that his purpose in doing so was to prevent its being reached by Patsy Luonga, a passenger in his automobile who was injured in the accident. Luonga's action was started August 15, 1940 and judgment was recovered against the bankrupt on March 7, 1942. On the same date two other persons injured in the accident also obtained judgments against him. After the judgments were recovered he was examined in supplementary proceedings and was jailed on a body execution. The following day, March 19, 1942, he filed a voluntary petition in bankruptcy, scheduling no assets and listing the three judgment creditors as his only creditors. Thereafter a trustee in bankruptcy was appointed and the present proceeding was initiated before the referee to compel the bankrupt to turn over the money withdrawn from his savings account in July, 1940. The bankrupt, his wife and his brother were called as witnesses by the trustee. Their story was that the bankrupt had lost large sums in gambling and had spent the rest of the money before the judgments were recovered. The referee did not credit the explanation, found that the bankrupt was still in possession of the "moneys so fraudulently withdrawn," and ordered their surrender to the trustee. The district court confirmed the referee's order.

The question presented on appeal is whether the proof is sufficient to support the finding that the bankrupt had possession of the money on the date of the referee's order, November 19, 1942, more than twenty-seven months after it was withdrawn from the bank. It is urged that none of the cases relied on by the trustee has recognized the presumption of continued possession for so lengthy a period. But the inference that the bankrupt has not dissipated the money is supported by much more than the mere...

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7 cases
  • Maggio v. Zeitz In re Luma Camera Service, Inc
    • United States
    • U.S. Supreme Court
    • February 9, 1948
    ...2 Cir., 93 F.2d 424; In re Pinsky-Lapin & Co., 2 Cir., 98 F.2d 776; Seligson v. Goldsmith, 2 Cir., 128 F.2d 977; Rosenblum v. Marinello, 2 Cir., 133 F.2d 674; Robbins v. Gottbetter, 2 Cir., 134 F.2d 843; Cohen v. Jeskowitz, 2 Cir., 144 F.2d 39; Zeitz v. Maggio, 2 Cir., 145 F.2d The problem ......
  • Charles Keeshin, Inc. v. Farmers & Merchants Bank of Rogers
    • United States
    • U.S. District Court — Western District of Arkansas
    • November 21, 1961
    ...after being involved in an accident, for no apparent purpose except to get it beyond the reach of a tort creditor, see Rosenblum v. Marinello, 2 Cir., 133 F.2d 674; it is very different when applied to a stock of wares being sold by a fast-living adventurer using the proceeds to make up the......
  • In re Luma Camera Service
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 11, 1946
    ...134 F.2d 843; Cohen v. Jeskowitz, 2 Cir., 144 F.2d 39; cf. In the Matter of Union Fabrics, Inc., 2 Cir., 153 F.2d 303; Rosenblum v. Marinello, 2 Cir., 133 F.2d 674. 8 Sanborn, C. J., in In re Rosser, 8 Cir., 101 F. 562, 566, 9 See also Radin, Debt, 5 Encyc.Soc. Sc. (1931) 32, 37-38. 10 Sinc......
  • In the matter of Harnik
    • United States
    • U.S. District Court — Western District of Arkansas
    • May 17, 1957
    ...after being involved in an accident, for no apparent purpose except to get it beyond the reach of a tort creditor, see Rosenblum v. Marinello, 2 Cir., 133 F.2d 674; it is very different when applied to a stock of wares being sold by a fast-living adventurer using the proceeds to make up the......
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