Backer v. A. B. & B. Realty Co., Inc.

• Decision Date: 20 November 1930
• Citation: 152 A. 241
• Parties: BACKER v. A. B. & B. REALTY CO., Inc., et al.
• Court: New Jersey Court of Chancery

152 A. 241

BACKER

v. A. B. & B. REALTY CO., Inc., et al.

Court of Chancery of New Jersey.

Nov. 20, 1930.

Syllabus by the Court.

Petitioner denied leave to file claim with receiver as an alleged creditor of defendant, after order barring creditors, because of inexcusable lack of diligence.

Syllabus by the Court.

Where petitioner in order to obtain leave of the court to file claim with a re ceiver as an alleged creditor of insolvent corporation after order barring creditors presents at_i one time an affidavit alleging a certain state of facts, and thereafter presents another affidavit alleging a substantially different state of facts, which were untrue and known by him so to be, he is guilty of contempt.

Syllabus by the Court.

Where petitioner in order to obtain leave of the court to file claims with a receiver as an alleged creditor of insolvent corporation after order barring creditors, well knowing he has no just claims against such corporation, presents to the court an affidavit containing statements false in fact and known by him so to be, and thereafter presents another affidavit containing statements false in fact and known by him so to be, manifestly to deceive the court, he is guilty of contempt.

Syllabus by the Court.

Where, as in the case sub judice, the falsity of statements contained in petitioner's affidavits is not only clearly demonstrated, but is admitted by the petitioner, and constitute perjury, such perjury should be punished as contempt.

Syllabus by the Court.

Where, as in the case sub judice, the petitioner attempted to impose upon the court by two affidavits setting up contradictory statements false in fact and known by him so to be, made with the intention of having the court rely upon them as true, it is immaterial which affidavit (if either) represents true facts, and he is guilty of contempt in facie curia;.

Suit by Franklyn E. Backer against the A. B. & B. Realty Company, Incorporated, and another. On complainant's petition for permission to file claim with receiver of defendant corporations after order barring creditors.

Application denied, and petitioner adjudged in contempt of court for perjury.

William A. Kavanagh, of Hoboken, for petitioner.

Joel Gross, of Jersey City, for receiver.

FALLON, Vice Chancellor.

The petitioner applied for leave to file claims with the receiver as an alleged creditor of the defendants, after order barring creditors. He presented two affidavits in support of his petition, one dated October 10 and the other October 20, 1930. Such affidavits contain variances of alleged facts stated therein. Upon my attention being directed thereto, I required the petitioner to testify orally with respect to the truth thereof. He appeared with his counsel, was examined, and was afforded ample opportunity to be heard in his own behalf. I am convinced that the petitioner's application should be denied. It is apparent from the proofs herein that the petitioner has no just claim against either of the defendant corporations. If he considered he had a just claim against either corporation, he might have presented same to the receiver prior to the making and entry of the order barring creditors. His failure so to do is due to inexcusable lack of diligence. He is the complainant in the suits in which...