In re Kardos
| Decision Date | 07 February 1927 |
| Docket Number | No. 162,163.,162 |
| Parties | In re KARDOS et al. (two cases). |
| Court | U.S. Court of Appeals — Second Circuit |
Albert Falck and Bigham, Englar & Jones, all of New York City, for petitioner appellant.
David W. Kahn, of New York City, for trustee in bankruptcy.
Before HOUGH, MANTON, and HAND, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above).
Neither the Bankruptcy Act (Comp. St. §§ 9585-9656) nor the General Orders prescribe in detail how a proof of debt shall be drawn. Section 57 (Comp. St. § 9641) and forms 31 and 32 give outlines, but nothing more. The exact wording of a proof of debt, like a pleading, must always be largely a matter of practice or habit.
It cannot be doubted that a proof can be submitted, making claim against both a partnership estate and the estates of the individual partners. There is nothing necessarily inconsistent in making such demand. In re Coe (C. C. A.) 183 F. 745, affirming (D. C.) 169 F. 1002; In re McCoy (C. C. A.) 150 F. 106.
It is indeed true that every partnership debt is in a sense a demand against the estates of the individual partners. As to which estate shall pay, or be first devoted to payment, is a matter of properly marshaling the assets. Section 5g (Comp. St. § 9589). As matter of right, therefore, these claims, like any others, could have been filed against both the individual and the partnership property; but as matter of practice they were we think read as being primarily filed against the partnership estate.
The original proofs are loosely drawn, and might be read as demands against both estates, and it is not unlikely that our feeling that they were well interpreted as claims against the firm arises mostly from the admitted infrequency of double claims.
But they were actual claims filed, and under some circumstances they might be paid in part out of the individual assets. Therefore under a long line of cases they were amendable after the expiration of the statutory year. A far more extreme case of amendment than this is In re Kessler, 186 F. 127, decided in this court. We cannot agree with In re McCallum (D. C.) 127 F. 768, while In re Walton, Deady 510, Fed. Cas. No. 17,129, a case under the act of 1867, is not, we think, applicable. It was therefore error to hold (if such was the holding) that there was no power to grant the amendment.
This point could be and is reached by petition to revise. In so far, however,...
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Rochelle v. U.S.
...are provable against the estates of the partners. Robinson v. Hamilton Wholesale Liquor Co., 132 F.2d 285 (CA6, 1942); Matter of Kardos, 17 F.2d 706 (CA2, 1927). 2. Allowability : Section 57g, 11 U.S.C. § 93g, requires creditors who have received "preferences, liens, conveyances, transfers,......
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United States v. Roth, 100
...was as least permissible. Liberality in the amendment of claims in bankruptcy has been the trend of our recent decisions. In re Kardos, 2 Cir., 17 F.2d 706; In re Marshall's Garage, Inc., 2 Cir., 63 F.2d 759; In re Lipman, 2 Cir., 65 F.2d 366; In re Weco Equipment, Inc., D.C.E.D.N.Y., 55 F.......
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Conway v. Union Bank of Switzerland
...3 In re G. L. Miller & Co., 2 Cir., 45 F. 2d 115. 4 In re Roeber, 2 Cir., 127 F. 122; In re Kessler, 2 Cir., 184 F. 51; In re Kardos, 2 Cir., 17 F.2d 706; In re Marshall's Garage, 2 Cir., 63 F.2d 759, 763; In re Lipman, 2 Cir., 65 F.2d 366; In re International Match Corp., 2 Cir., 69 F.2d 7......
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In re Starks, No. 22033.
...4 Cir., 20 F.2d 84; In re Fant, D.C.W.D.S.C., 21 F.2d 182; In re Atlantic Gulf & Pac. S. S. Corp., D.C. Md., 26 F.2d 751; In re Kardos, 2 Cir., 17 F.2d 706, 708; In re Kessler, 2 Cir., 184 F. 51; Scottsville Nat. Bank v. Gilmer, 4 Cir., 37 F.2d 227. It is quite another matter to use an `ame......