Levenson v. B. & M. FURNITURE CO.
Decision Date | 17 June 1941 |
Docket Number | No. 370.,370. |
Court | U.S. Court of Appeals — Second Circuit |
Parties | LEVENSON v. B. & M. FURNITURE CO., Inc. |
Sidney Wedeen and Cohen & Wedeen, all of New York City, for appellant.
Abraham Chaice, of New York City, for appellee.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
It is quite true that the creditor can have no relief in this situation without proving fraud by the debtor; but it is a mistake to suppose that the whole "arrangement" must then be set aside. The first subdivision of § 386, 11 U.S.C.A. § 786, does indeed require that this shall be done and that the estate shall be liquidated, and the second presupposes that the plan shall be altered or modified generally; but the third subdivision demands neither, it looks only to the specific correction of the wrong done if that may be accomplished without affecting "adversely" the interests of innocent parties. Under the power so conferred the bankruptcy court may, if the circumstances permit, grant what the creditor here demands; i. e., that his claim shall be scheduled and allowed, and that the plan shall provide for it according to its proper priority, if any.
The petition at bar does not indeed allege the fraud with as much particularity as is desirable. But the omission is not fatal; it is only a pleading, and Rule 8(f), 28 U.S.C.A. following section 723c, demands that it "shall be so construed as to do substantial justice." Its general purport is plain enough, and if the debtor had really any doubt about its meaning — which plainly it had not — it had, and still has, relief under Rule 12(e); the day has passed when substantial interests stand or fall for such insubstantial reasons.
Order affirmed.
To continue reading
Request your trial-
Ira S. Bushey & Sons v. WE Hedger Transp. Corp.
...23 See Appendix to this opinion. 24 See Phelan v. Middle States Oil Corp., 2 Cir., 154 F.2d 978, 991. 25 See, e.g., Levenson v. B. & M. Furniture Co., 2 Cir., 120 F.2d 1009; Dioguardi v. Durning, 2 Cir., 139 F.2d 774; Truth Seeker Co. v. Durning, 2 Cir., 147 F.2d 54. See also Kohler v. Jaco......
-
Subin v. Goldsmith
...where a man's liberty is at stake, they must suffice in a civil complaint affecting merely defendants' property. In Levenson v. B. & M. Furniture Co., 2 Cir., 120 F.2d 1009, we said: "The petition at bar does not indeed allege the fraud with as much particularity as is desirable. But the om......
-
In re Initial Public Offering Securities Lit.
...12(e); the day has passed when substantial interests stand or fall for such insubstantial reasons." Levenson v. B. & M. Furniture Co., 120 F.2d 1009, 1009-10 (2d Cir. 1941) (per curiam) (L. Hand, Chase and 56. There are four types of securities fraud under the Exchange Act: (1) Section 10b,......
-
Sidebotham v. Robison
...that it was error to dismiss the complaint with prejudice although there had been three complaints. See also, Levenson v. B. & M. Furniture Co., 2 Cir., 1941, 120 F.2d 1009 and Hummel v. Wells Petroleum Co., 7 Cir., 1940, 111 F.2d 883, 886, both cases which lay down broad rules for sustaini......