Conti v. Volper, 165
| Decision Date | 11 January 1956 |
| Docket Number | Docket 23795.,No. 165,165 |
| Citation | 229 F.2d 317 |
| Parties | Roseanna CONTI, Respondent-Appellant, v. Morris VOLPER, Trustee of Gondola Associates, Inc., Bankrupt, Petitioner-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward J. McCann, Brooklyn, N. Y., for respondent-appellant.
Levin & Weintraub, New York City (Benjamin Weintraub and Howard N. Beldock, New York City, of counsel), for petitioner-appellee.
Before CLARK, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.
Constance v. Harvey, 2 Cir., 1954, 215 F.2d 571, reluctantly followed by Judge Byers, may seem to reach an inequitable result, but Section 70, sub. c, of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. c, provides: "The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists"; and it is difficult to see how such plain language could be disregarded.
Affirmed.
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...also, Constance v. Harvey, 2 Cir., 1954, 215 F.2d 571, cert. denied, 1955, 348 U.S. 913, 75 S.Ct. 294, 99 L.Ed. 716 and Conti v. Volper, 2 Cir., 1956, 229 F.2d 317 (§ 70 sub. c of the 39 See p. 67, supra, setting forth the debenture provision upon which the Trustee relies. Although the plea......
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...Constance v. Harvey, 2 Cir., 1954, 215 F.2d 571, certiorari denied, 1955, 348 U.S. 913, 75 S. Ct. 294, 99 L.Ed. 716, and Conti v. Volper, 2 Cir., 1956, 229 F.2d 317. With this exception, the opinion of the referee is adopted as the opinion of this Court, and the order of the referee is 1 Se......