In re Arctic Leather Garment Co., 384.

• Decision Date: 10 May 1937
• Docket Number: No. 384.,384.
• Citation: 89 F.2d 871
• Parties: In re ARCTIC LEATHER GARMENT CO. ROBERTSON v. BERGER.
• Court: U.S. Court of Appeals — Second Circuit

89 F.2d 871 (1937)

In re ARCTIC LEATHER GARMENT CO. ROBERTSON v. BERGER.

No. 384.

Circuit Court of Appeals, Second Circuit.

May 10, 1937.

Max Rothenberg, of New York City (David Haar, of New York City, of counsel), for appellant.

Benjamin Siegel, of New York City (Benjamin Brownstein, of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

PER CURIAM.

This appeal is from an order entered upon the report of a special master, directing the respondent — the debtor's president — to surrender to the trustee in reorganization certain books and papers alleged to be within his possession or control. The order included four books and the working sheets used to make up the debtor's inventory at the end of the year. The four books were as follows: (1) A "payroll book" containing the names and addresses of the debtor's employees, and what they got; (2) a "cutting book," the record of cloth delivered to workmen to be cut up into garments; (3) a "shipping book," showing all made-up garments shipped out of the factory; (4) a "garment book," showing the garments made up. It is the trustee's theory that all these were kept in the factory in New Jersey and were on the premises after the petition was filed, January 9, 1936, and until just before the trustee took possession, January 19th, when the respondent, the debtor's president, Berger, carried them off, either personally, or by means of the treasurer, Sussmann, who has disappeared, and who, besides Berger, was the debtor's only shareholder and officer. The existence of the "payroll book" was proved by the testimony of the watchman of the factory, the bookkeeper, and an employee of the "carrier" of workmen's compensation. All agreed that it contained the names and addresses of the workmen, though the bookkeeper said that it did not show their wages. The "cutting book" was to check the cloth delivered to the workmen; it consisted of a series of slips with counterfoils, the slips to be torn out and given to the workmen when cloth was delivered, the record remaining on the counterfoils. It was seen by the watchman and a cutter whose wages depended upon its entries. The "shipping book" was also in foil and counterfoil, it represented the finished garments which left the factory; a foil out of this book was in evidence and the watchman testified to the existence of the book, though the shipping clerk said that there was no book, but that an original went to each customer and merely the counterfoil to the New York office. The "garment book" as a separate book from the "cutting-book" is not satisfactorily shown to have existed, and indeed the master seems to have been in doubt whether there was any. We share that doubt; taking the record as a whole, we cannot find evidence of more than the existence of the three books, which the watchman called the "Ledger," the "Composition Book," and the "Shipping Book." We will therefore reverse the order so far as it directed the surrender of the book therein numbered 7.

As to the three books, the defense is that they were not traced to the respondent's possession, and that the master did not find that the respondent could deliver them if ordered. It is true that there was not such formal finding;...