Cohen v. Goldman
| Decision Date | 16 April 1918 |
| Docket Number | 1333. |
| Citation | 250 F. 599 |
| Parties | COHEN v. GOLDMAN. |
| Court | U.S. Court of Appeals — First Circuit |
Joseph B. Jacobs, of Boston, Mass. (Jacobs & Jacobs, of Boston Mass., on the brief), for appellant.
Before DODGE, BINGHAM, and JOHNSON, Circuit Judges.
This is an appeal by George I. Cohen, trustee in bankruptcy of Israel Sternburg, from a final decree of the District Court of Massachusetts, dismissing his bill in equity brought against the appellee to recover the sum of $1,550, paid by the bankrupt within four months before the filing of the petition in bankruptcy against him, to the holders of certain promissory notes upon which the appellee was an accommodation indorser, and also the sum of $123; but the bill does not state to whom the payment of the several amounts which make up the latter sum was made, nor does it allege that the appellee was benefited by their payment.
The plaintiff in his bill alleged the bankruptcy of Sternburg the appointment of the appellant as trustee in bankruptcy and his qualification the execution of the notes by the bankrupt, that the appellee was an accommodation indorser on them, that within four months of the date of bankruptcy the bankrupt, being insolvent, paid said notes, amounting to $1,550, that the effect of said payments was to enable the defendant to obtain a greater percentage of his debt than any other creditors of the same class, and that the defendant, at the date of said payments and for some time previous thereto, had reasonable cause to believe that said payments would effect a preference. Upon the appellee's motion the bill was dismissed by the learned District Judge for the following reasons:
The law is well settled that a surety or indorser is a creditor, within the meaning of the Bankruptcy Act. Stern v. Paper (D.C.) 183 F. 228, 231; Kobusch v. Hand, 156 F. 660, 84 C.C.A. 372; Swarts v. Fourth National Bank, 117 F. 1, 54 C.C.A. 387; National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 32 Sup.Ct. 633, 56 L.Ed. 1042; Landry v. Andrews, 22 R.I. 597, 48 A. 1036; Bartholow v. Bean, 12 Wall. 635, 2 L.Ed. 866; 1 Loveland on Bankruptcy, p. 989.
The question raised by the appeal is therefore whether the allegations in the bill are sufficient to entitle the appellant, as trustee, to recover under section 60b, Act of July 1, 1898, c. 541, as amended Act Feb. 5, 1903, c. 487, Sec. 13, and Act June 25, 1910, c. 412, Sec. 11 (Comp. St. 1916, Sec. 9644), the provisions of which, so far as applicable to the facts in this case, are as follows:
'If a bankrupt shall * * * have made a transfer of any of his property, and if, at the time of transfer * * * and being within four months before the filing of the petition in bankruptcy * * * the bankrupt being insolvent and the * * * transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that the enforcement of such * * * transfer would effect a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.'
A preference is defined in section 60a of the same act as follows:
'A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition * * * made a transfer of any of his property, and the effect of the enforcement of such * * * transfer will be to enable...
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Watchmaker v. Barnes
... ... SAME. Nos. 1391, 1393-1396.United States Court of Appeals, First Circuit.June 18, 1919 [259 F. 784] ... Abraham ... K. Cohen, of Boston, Mass. (David M. Watchmaker, of Boston, ... Mass., on the brief), for plaintiff in error Watchmaker ... Charles ... H. Dow, ... procured Rubin to make them. Swarts v. Fourth National ... Bank, 117 F. 1, 54 C.C.A. 387; Cohen v ... Goldman, 250 F. 599, 162 C.C.A. 615; Kobusch v ... Hand, 156 F. 660, 84 C.C.A. 372, 18 L.R.A. (N.S.) 660; ... Stern v. Paper (D.C.) 183 F. 228; In re ... ...
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Davis v. Woolf, 5328.
...In other words, a surety is a creditor under the Bankruptcy Act. Glenn, Fraudulent Conveyances and Preferences, § 459; Cohen v. Goldman, 1 Cir., 250 F. 599, 600; Kobusch v. Hand, 8 Cir., 156 F. 660, 18 L.R.A.,N.S., 660; Walker v. Wilkinson, 5 Cir., 3 F.2d 867; Hershon v. Abelson, 2 Cir., 69......
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In re Roberds, Inc., Bankruptcy No. 03-30194.
...a bankruptcy trustee raising a federal claim under Section 60 of the Bankruptcy Act, not a state law claim. Similarly, in Cohen v. Goldman, 250 F. 599 (1st Cir.1918), state law was not The Malone holding did not require any discussion of Ohio preference law; nevertheless, the Malone court, ......
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Reed v. Guaranty Sec. Corp.
... ... No. 5,535, decided ... by Judge Fox in 1871, has been to allow recovery of a money ... preference by a bill in equity. See, for instance, Cohen ... v. Goldman, 250 F. 599, 162 C.C.A. 615; Tremont Tr ... Co. v. Cohen (C.C.A.) 263 F. 81 ... Judge ... Brown, in Johnson v. Hanley ... ...