Cohen v. Jeskowitz
| Decision Date | 04 December 1944 |
| Docket Number | No. 386.,386. |
| Citation | 144 F.2d 39 |
| Parties | COHEN v. JESKOWITZ. |
| Court | U.S. Court of Appeals — Second Circuit |
Chester A. Lessler, of New York City, for appellant Abraham Jeskowitz.
Glass & Lynch, of New York City (Leslie Kirsch, Albert Parker, Samuel Bader, and Sydney W. Cable, all of New York City, of counsel), for appellee Leonard H. Cohen.
Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.
Writ of Certiorari Denied December 4, 1944. See 65 S.Ct. 270.
This is a turnover proceeding brought by the trustee in bankruptcy of United Fabrics, Inc., against Abraham Jeskowitz. The latter was the president and sole stockholder of United Fabrics, Inc. He is charged with failing to account for merchandise valued at $69,921.24, the proceeds of a ring amounting to $875, and the following books and papers under his control: Journal for the year 1938; general ledger for the year 1937; all inventory sheets for the years 1937, 1938 and 1939, and all purchase invoices for the year 1937. Jeskowitz testified that he had no merchandise of United Fabrics, Inc., or its proceeds, in his possession, and none has been physically discovered through the efforts of the trustee. He further testified that he had sold the ring, which credible evidence indicated was collateral for a loan by the corporation to one of its debtors, and that he had used the proceeds for living expenses. He offered no explanation for failing to account for the books and records with which he was charged and over which he undoubtedly had control.
An inventory of the merchandise of Union Fabrics, Inc., was taken about January 1, 1939, by employees of the company in order to obtain a loan from the Bank of Manhattan and Jeskowitz set a value on it of $194,785.05. The bankrupt purchased merchandise between January 1, 1939, and the making of a general assignment for the benefit of creditors on September 28, 1939, at a cost of $218,331.91. This figure was a net amount reached after allowing $23,806.10 which represented the value of goods returned to the vendors. Jeskowitz testified that all the merchandise which was not on hand at the time of the assignment was sold at an advance of about 10%. The sheets for the inventory were not found by the trustee, but Jeskowitz's accountant, Michaelson, testified that the value fixed at the time the inventory was taken in order to furnish the financial statement was at cost or market, whichever was lower. The merchandise on hand at the date of the assignment based on the detailed inventory of the cost of the merchandise which was verified by Jeskowitz was of the value of $20,628.36.
The merchandise sold between January 1, 1939, and September 28, 1939, taken at cost, was of the value of $322,587.36. This value was based on a computation by the trustee's accountant of sales recorded in the bankrupt's sales books and sales return books. As the inventory sheets and the records that would disclose the cost were missing, Section 21, sub. l of the Bankruptcy Act, 11 U.S.C.A. § 44, sub. l, required the referee to presume "until the contrary shall appear, that such property was sold at a price not less than the cost * * *." The referee applied the presumption as he was bound to do.
The result of the foregoing figures upon which the shortage was computed resulted in the following finding of the referee:
Bankrupt had merchandise on
hand on January 1st, 1939 of
the value of ................... $194,785.05
(Financial Statement, Trustee's
exhibit 1, 10/24/41)
Merchandise was purchased
during period from January
1st, 1939 to September 28th
1939, net ...................... 218,351.91
___________
Total merchandise to be accounted
for ............................ $413,136.96
Less: Cost of merchandise sold
during period January 1st
1939 to
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