Hirsh, Newman, Reass & Becker v. Capital Co.

• Decision Date: 20 December 1938
• Docket Number: No. 6605.,6605.
• Citation: 100 F.2d 777
• Parties: HIRSH, NEWMAN, REASS & BECKER v. CAPITAL CO. et al.
• Court: U.S. Court of Appeals — Third Circuit

100 F.2d 777 (1938)

HIRSH, NEWMAN, REASS & BECKER v. CAPITAL CO. et al.

No. 6605.

Circuit Court of Appeals, Third Circuit.

December 20, 1938.

Bourgeois & Coulomb, of Atlantic City, N. J., and Daniel G. Rosenblatt, of New York City, for appellant.

Thompson & Hanstein, of Atlantic City, N. J. (Cravath, de Gersdorff, Swaine & Wood and Samuel B. Stewart, Jr., all of New York City, of counsel), for appellees.

Before DAVIS, BUFFINGTON, and THOMPSON, Circuit Judges.

BUFFINGTON, Circuit Judge.

In the bankruptcy of William Fox in the District of New Jersey, Becker and others, members of the firm of Hirsh, Newman, Reass & Becker, presented a petition praying that court to enter an order staying the Capital Company from examining them in supplementary proceedings to a judgment obtained by it against Fox in the United States District Court for the Southern District of New York. The petition alleged that Capital had filed in the bankruptcy proceeding below its claim on such judgment; that petitioners had for many years been counsel for Fox; that they were residents of New York but had on request voluntarily appeared before the referee in bankruptcy in New Jersey and submitted themselves to examination "as to all the facts relevant to the financial condition and transactions of the bankrupt"; that Becker and Rosenblatt, members of the firm, were examined and testified at length and had agreed that if desired the other members of the firm would also appear and testify. Samuel B. Stewart, Jr., attorney for Capital Company, "examined the witness, William Becker for an extended period of time" which was for several days. The petition set forth that the Capital Company "intends to proceed with the examination of your petitioners under the subpœnas in supplementary proceedings and that your petitioners should appear in New York for examination. Your petitioners feel that this insistence on the part of the Capital Company is directly in conflict with the purpose and intent of the bankruptcy act and the relief it is intended to afford". Summing up the petition petitioners contend "it is respectfully submitted that the Capital Company and its various counsel should not be permitted to examine your petitioners at any time or at any place other than in the orderly conduct of the 21(a) proceeding". It will be noted that the Capital Company had obtained a judgment in the Southern District of New York and that it had (see Record page 28) filed a claim therefor in the New Jersey bankruptcy proceeding and that the trustee in bankruptcy in that proceeding is taking no part in this controversy between the petitioners and the Capital Company.

In view of these facts, which, in the absence...