Bradley v. Huntington

• Citation: 277 F. 948
• Decision Date: 14 December 1921
• Docket Number: 58.
• Parties: BRADLEY et al. v. HUNTINGTON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

277 F. 948

BRADLEY et al. v. HUNTINGTON et al.

No. 58.

United States Court of Appeals, Second Circuit.

December 14, 1921

Henry A. Forster and Thomas Henry Keogh, both of New York City, for plaintiff in error Bradley.

Deiches & Goldwater, of New York City (Maurice Deiches and Francis L Driscoll, both of New York City, of counsel), for plaintiff in error Commercial Trust Co.

Olcott Bonynge, McManus & Ernst, of New York City (Irving L. Ernst and Saul S. Myers, both of New York City, of counsel), for defendants in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH Circuit Judge.

Bradley as the adjudicated bankrupt, and Commercial Trust Company, as an answering creditor, have brought this writ, complaining of errors alleged to have been committed to their prejudice during the jury trial, asserting that this procedure is their remedy under Grant, etc., Co. v. Laird Co., 203 U.S 502, 27 Sup.Ct. 161, 51 L.Ed. 292; and their only remedy under Lennox v. Allen-Lane Co., 167 F. 114, 92 C.C.A. 566, certiorari denied 214 U.S. 512, 29 Sup.Ct. 694, 53 L.Ed. 1062. Consequently our function is limited to consideration of the errors of law alleged; the verdict binds us as to all questions of fact, including of course the insolvency of Bradley.

The petitioning creditors (defendants in error here) allege in their petition the second and third acts of bankruptcy; i.e., transfer with intent to prefer, and permitting a creditor to obtain a preference by legal proceeding. As the trial court dismissed so much of the petition as rested upon the supposed commission of the third act of bankruptcy, we are not here concerned with it.

The act of bankruptcy as to which verdict was found was thus pleaded in the petition:

'Upon information and belief that at various times during the months of July, August, September, and October, 1918, said William Bradley, while insolvent, made payments to certain of his creditors with intent to prefer such creditors over his other creditors. That the names of such creditors are at present unknown to your petitioners.'

Both Bradley and the answering creditor (Farson) answered, denying absolutely this allegation. More than two years after the issue was thus framed it was (pursuant to the demand of defendants) tried before a jury. After trial begun and considerable evidence given, and the court had held that the proof offered in support of the third act of bankruptcy was insufficient, the plaintiffs in error here moved to dismiss the petition because the allegations above quoted as to the second statutory act of bankruptcy 'were insufficient * * * and too indefinite and uncertain (a foundation) upon which to prove or attempt to prove any act of bankruptcy.'

This motion was denied, but the court directed the petitioners to file and serve a bill of particulars and adjourned the trial for a week in order that this might be done. It was done, the defendants in error here not pleading surprise, and the verdict sufficiently indicates that the particulars were proven. It is now assigned for error that the trial court was bound as matter of law to grant the motion as made, and had no right to cure, or attempt to cure, the situation by ordering a bill of particulars.

The pleading complained of was substantially in the words of the statute, and was plainly insufficient under In re Condon, 209 F. 800, 126 C.C.A. 524. But it was amendable. Armstrong v. Fernandez, 208 U.S. 324, 28 Sup.Ct. 419, 52 L.Ed. 514.

Further the defect in the pleading or petition was not jurisdictional; i.e., the allegations, if true or admitted by default, would uphold an adjudication. Undoubtedly, if a motion (equivalent to a...