Gleason v. O'Mara

• Decision Date: 06 October 1909
• Docket Number: 45 (1,223).
• Citation: 180 F. 417
• Parties: GLEASON v. O'MARA.
• Court: U.S. Court of Appeals — Third Circuit

180 F. 417

GLEASON v. O'MARA.

No. 45 (1,223).

United States Court of Appeals, Third Circuit.

October 6, 1909

John B Gleason, pro se.

Stone &amp Stone, for respondent.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

LANNING Circuit Judge.

On August 12, 1908, Harry K. Thaw was adjudged a bankrupt on his own petition by the District Court for the Western District of Pennsylvania. On August 28, 1908, John B. Gleason, an attorney and counsellor at law of the city of New York commenced an action at law against Thaw in the United States Circuit Court for the Southern District of New York. On September 7, 1908, Roger O'Mara was appointed trustee in bankruptcy of Thaw's estate, and on October 24, 1908, the court in which the bankruptcy case was pending, on the application of the trustee and without notice to the plaintiff Gleason, made an order staying Gleason's action in New York, and subsequently refused, on Gleason's application, to take off the stay. This refusal is the subject of our present consideration.

The plaintiff, Gleason, contends that his action is founded on a 'liability for obtaining property by false pretenses or false representations,' and that under the provisions of section 17(2) and section 11 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 550, 549 (U.S. Comp. St. 1901, pp 3428, 3426)) the court erred in staying his action and in refusing to dissolve the stay. By the third paragraph of the complaint filed in the action in New York, Gleason alleges that the defendant Thaw was indicted in the city of New York on June 28, 1906, for murder in the first degree. By the fourth paragraph he alleges that 'the plaintiff was retained by the defendant in July, 1906, as his counsel upon his indictment and the matters connected therewith, and the trial and preparation therefor, and all matters touching his sanity, and generally as counsel for the defendant on matters affecting the defendant. ' By the fifth paragraph he alleges that 'the plaintiff was his (Thaw's) chief counsel from July 14, 1906, to February 7, 1907,' and by the fourteenth paragraph he alleges that 'in July, 1906, the defendant (Thaw) stated to me (Gleason) that there had been a family settlement so that the defendant actually owned interests in his father's estate, or derived therefrom, and property interests more than enough to pay all the expenses of the trial, although these expenses should exceed $500,000,...