Fried v. Cano

• Decision Date: 24 March 1959
• Citation: 171 F. Supp. 254
• Parties: Elmer FRIED, Trustee in Bankruptcy of International Distributing Export Co., Inc., Judgment Creditor, v. Arturo CANO, Judgment Debtor.
• Court: U.S. District Court — Southern District of New York

171 F. Supp. 254

Elmer FRIED, Trustee in Bankruptcy of International Distributing Export Co., Inc., Judgment Creditor, v. Arturo CANO, Judgment Debtor.

United States District Court S. D. New York.

March 24, 1959.

Herbert Rubin, New York City, for judgment creditor.

Benjamin Gelosky, New York City, for judgment debtor.

DAWSON, District Judge.

This motion was brought on by the judgment creditor in the course of proceedings supplementary to judgment by an order to show cause why an order should not be entered granting certain relief to the judgment creditor. The specific relief requested is as follows:

a) to compel the judgment debtor to appear for examination in supplementary proceedings at such time and place as the Court may determine;

b) for an appointment of a Receiver of the assets of the judgment debtor;

c) to compel Cangold, Inc., to repay to the judgment creditor or to the Receiver the sum of $6,425.42 owed by Cangold, Inc., to the judgment debtor.

d) to compel Cangold, Inc., the third party herein being examined by Abraham Goldstein its banquet manager and attorney, pursuant to subpoena duly served, to testify regarding all financial relationships existing between the judgment debtor, the corporation and its stockholders, officers and employees and with respect to any diversion of assets from the corporation with respect to which the judgment debtor may have an interest;

e) to compel the third party Ruth Goldstein, duly served with a subpoena herein, to testify with respect to any and all financial arrangements and transactions between her and the judgment debtor and between her and any person or corporation in which the judgment debtor has an interest and in respect to which the judgment debtor may have an action for diversion of assets;

f) to compel Ruth Goldstein to turn over to the judgment creditor or to any receiver appointed herein 50 per cent of the capital stock of T & D Catering Corp.

g) for such other and further relief as to the Court may seem just and proper.

The judgment creditor, as trustee in bankruptcy of the estate of International Distributing Export Company, Inc., obtained a judgment in the United States District Court, Southern District of New York, against the judgment debtor herein on November 18, 1958, for the sum of $11,500, plus interest from January 2, 1950. 167 F.Supp. 625. As appears from the affidavit submitted by the judgment creditor, the judgment was duly docketed with the Clerk of this court and transcripts were duly docketed in the offices of the County Clerks of New York and Queens Counties. Subsequently execution was issued to the Sheriff of the City of New York in Queens County. However, this execution was returned unsatisfied and the judgment remains to this date wholly unsatisfied.

Both parties have appealed to the Court of Appeals from certain portions of the judgment. No bond has been filed by the judgment debtor pending his appeal, nor has the judgment been secured in any other way.

In the affidavit submitted by the attorney for the judgment creditor he alleges that he personally made six attempts to serve a subpoena on the judgment debtor at his place of business to compel him to appear for examination in supplementary proceedings. All of these attempts, plus attempts by others, were unsuccessful. The judgment creditor's attorney further alleges that although diligent efforts were made, he was frustrated by the shielding attempts at the judgment debtor's home, as well as at The Boulevard, a night club owned by Cangold, Inc., in which the judgment debtor has a 50% stock interest, and at which he frequently works.

Three opposing affidavits have been filed; one by Ruth Goldstein, owner of the remaining 50% stock interest in Cangold, Inc.; the second by her husband Abraham Goldstein, who is the banquet manager and attorney for the night club; and the third by Benjamin Gelosky, Esq., who avers in his affidavit that he is the attorney for the judgment debtor, Ruth Goldstein and Abraham Goldstein. Although there are some conflicting statements between the affidavit of the attorney for the judgment creditor and the opposing affidavits relating to the diligence of the attorney for the judgment creditor in his attempts to effect service of a supplementary proceedings subpoena on the judgment debtor, it appears from a complete reading of the papers that there have been some attempts to evade the service of the subpoena.

In addition, the papers show that on October 16, 1958, approximately one month before judgment was entered against the judgment debtor, he filed a financial statement with the New York State Liquor Authority setting forth certain assets which included (a) his stock in Cangold, Inc., at a value of $25,000, (b) a loan owed to the judgment debtor by Cangold, Inc., in the amount of $6,425.42, and (c) a statement by the judgment debtor that he had no liabilities.

While the judgment debtor has not himself filed any affidavits in this matter, the affidavit of Abraham Goldstein now alleges that the amounts stated and filed with the New York State Liquor...