In re Fruchter

• Decision Date: 12 April 1943
• Citation: 50 F. Supp. 1
• Parties: In re FRUCHTER.
• Court: U.S. District Court — Southern District of New York

50 F. Supp. 1

In re FRUCHTER.

District Court, S. D. New York.

April 12, 1943.

David Haar, of New York City, for bankrupt.

Leo E. Ypsilanti, of New York City, for petitioner.

HULBERT, District Judge.

This is a motion to secure, among other relief, an order vacating a discharge in bankruptcy granted nearly four years ago.

Attached to the notice of motion is an affidavit, verified by Leo E. Ypsilanti, a member of the bar of this court, as attorney for one Irving Gerber who, it was stated on the argument, did not verify the affidavit because he is in the Armed Forces of the United States, although there is no statement to that effect in the moving papers.

On or about January 20, 1927, Honeywell Holding Corporation obtained a judgment in the New York Supreme Court, County of New York, against Alton Fruchter in the sum of $367.79. It is alleged that on December 8, 1941, Honeywell Holding Corporation, by an instrument in writing, assigned the judgment to Irving Gerber and that no part of said judgment has been paid.

On February 10, 1939, Alton Fruchter filed a voluntary petition in bankruptcy in this court and thereafter, on April 28, 1939, was granted his discharge.

According to the records in this proceeding the bankrupt listed Honeywell Folding Company, 215 West 92nd Street, New York City, New York, as a creditor, and a notice of the first meeting of creditors addressed to Honeywell Folding Company at that address was returned marked "not found." This was also true of the notice fixing time for filing objections to bankrupt's discharge.

The name of the judgment creditor is Honeywell Holding Corporation, whose address was 749 West End Avenue, New York, N. Y.

The schedules in bankruptcy listed liabilities as $23,310.86 and assets at only $50.00 (wearing apparel).

The record further discloses that a claim was filed by only one creditor, no receiver was appointed, no trustee was elected and the proceedings were closed by the Referee.

The application to vacate the discharge, reopen the proceedings, elect a trustee and punish the bankrupt for contempt of court is based upon the following disclosures:

On January 1, 1939, the bankrupt had two bank accounts:

(1) In the Manhattan Savings Bank, New York, N. Y., account No. 272,691, in which there was a balance on that date of $427.10, of which $100 was withdrawn on January 7, 1939, leaving a balance of $327.10, on the date of the filing of the voluntary petition in bankruptcy herein. $22 was withdrawn on February 14, 1939; interest of $1.52 was credited on April 1, and $25 deposited on April 4, and $225 withdrawn on April 4, so that on the date of the bankrupt's discharge the balance in that bank was $106.62.

(2) In the Bowery Savings Bank, New York, N. Y., account No. 1215812, on January 1, 1939, the bankrupt had a balance of $309.40. He claims this book was lost and reported that fact to the Bank Nov. 25, 1941. He alleges, in an answering affidavit, that a friend called his attention to the fact that this account was listed in an advertisement inserted by the Bank in a local New York paper in...