In re Brendan Reilly Associates, Inc.

• Citation: 372 F.2d 235
• Decision Date: 30 January 1967
• Docket Number: Docket 30924.,No. 294,294
• Parties: In the Matter of BRENDAN REILLY ASSOCIATES, INC., Debtor. CAMBRIDGE FACTORS, Creditor-Appellant, Quintino TESCIUBA, doing business as Mutual Trade Enterprises Company, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

372 F.2d 235 (1967)

In the Matter of BRENDAN REILLY ASSOCIATES, INC., Debtor CAMBRIDGE FACTORS, Creditor-Appellant Quintino TESCIUBA, doing business as Mutual Trade Enterprises Company, Appellee.

No. 294, Docket 30924.

United States Court of Appeals Second Circuit.

Argued January 12, 1967.

Decided January 30, 1967.

Howard C. Amron, of Bendes, Stark & Amron, New York City, for creditor-appellant.

Anthony B. Cataldo, New York City, for appellee.

Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

This bankruptcy appeal epitomizes what Mr. Justice Holmes meant when he described insolvency proceedings as "bellum omnium contra omnes." Fogg v. Supreme Lodge of the Order of the Golden Lion, 156 Mass. 431, 433, 31 N.E. 289, 290 (1892). The contestants here are Quintino Tesciuba, doing business as Mutual Trade Enterprises Company, a supplier of marble, and Cambridge Factors, a financing agent. Both are creditors of Brendan Reilly Associates, Incorporated, a bankrupt manufacturer of furniture. Operating under agreements dated February 19, 1963, Tesciuba supplied Brendan Reilly with marble on consignment and Cambridge Factors, which made advances to Brendan Reilly secured by its accounts receivable and a lien on its inventory, paid Tesciuba for the marble as Brendan Reilly used it. Apparently this arrangement worked satisfactorily until March 6, 1964 when Brendan Reilly filed a petition under chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 701-799. At this time, Brendan Reilly had approximately $17,000 worth of Tesciuba's marble on its premises. On March 10, Brendan Reilly was appointed debtor in possession and two days later Referee Edward J. Ryan approved a new factoring agreement.

Before very long, Tesciuba discovered that the debtor was using the marble and that Cambridge was remitting nothing. Consequently, on April 2, Tesciuba moved against the debtor for: an accounting of and payment for any marble used after April 1; reclamation of any unused marble unless security was provided; payment of $1,721 for marble used. He also moved against Cambridge in the event that the debtor defaulted on payment of the $1,721. After an adjournment and negotiations, Tesciuba and Brendan Reilly agreed to a stipulation dated April 21, whereby: the debtor would pay Tesciuba for marble used after April 15 out of the proceeds of a sale to be conducted for the debtor by Dean Furniture; the debtor would pay Tesciuba $1,101.49 in eleven weekly installments beginning May 1 for marble used from the date of filing the petition to April 15; the debtor would pay Tesciuba $1,200 on April 22 for the balance due on marble used since the petition date; Tesciuba would be allowed to pick up all unused marble within seven days; Tesciuba would adjourn the reclamation proceedings from April 24 to May 1 and would withdraw the proceeding upon the debtor's performance of the conditions of the stipulation.

When Tesciuba did not receive the $1,200 on April 22, he gave notice that the reclamation proceedings would not be adjourned. Neither the debtor nor Cambridge appeared at the hearing on April 24 and on April 29 the referee entered a default. He found that the debtor had certain of Tesciuba's marble in its possession, had used the marble after filing the petition but had refused to pay for it and had included the value of the marble in the sale price to customers thereby creating accounts receivable which were assigned to Cambridge. Therefore, the referee ordered the debtor to transfer all unused marble to Tesciuba, to pay Tesciuba the $1,721 (on default of which Cambridge would pay the sum out of accounts receivable) and to account for all marble used on or after April 1 and pay any sum due (on default of which Cambridge would account and pay the sum due). On May 14, the referee certified under § 41 of the Bankruptcy Act, 11 U.S.C. § 69, that neither the debtor nor Cambridge had complied with the order and on June 5 Judge Harold R. Tyler adjudged the debtor in contempt. He provided that the contempt would be purged if the debtor paid the $1,721 that day and returned the marble by June 9. Judge Tyler further ordered that all other parties affected by the April 29 order certify to the referee their compliance with the order by June 11. The referee certified on June 24 that the marble had been returned but that neither the debtor nor Cambridge had paid the $1,721 and that whether the accounting had been complied with had to await determination in a hearing. On June 29, Judge Tyler held the debtor and Cambridge in contempt for failure to pay the $1,721 and fined each $1,000. Upon payment of $1,721 by Cambridge, the court purged Cambridge of contempt on July 20 and reduced the debtor's fine to $250. Judge Tyler concluded his order by saying "All of the above shall be without prejudice to the balance of the proceedings hereunder to take place before the Hon. Edward J. Ryan."

On August 8, Cambridge moved before the referee under Fed.R.Civ.P. 60¹ to vacate and set aside its default of April 29. This motion was denied on December 14 and a timely petition to review was filed but the parties before the referee agreed to hold it in abeyance until the conclusion of the proceedings before the referee which has not yet occurred.² Some two years after the default Cambridge again moved to open the default, and on February 7, 1966 the referee denied this motion because as he stated:

"I do feel * * * that I have no right, without Judge Tyler\'s permission to fail to obey the mandate of Judge Tyler, contained in his order, in which he directed me to take an accounting."

Cambridge then brought a motion to show cause why

"an order should not be made herein permitting Hon. Edward J. Ryan, Referee in Bankruptcy, to consider a motion made on behalf of Cambridge Factors to vacate and set aside an order * * * dated April 29, 1964 * * *"

On June 15, the parties proceeded to the chambers of Judge Tyler who declined a reference of the motion. On June 28, Judge Sugarman denied the motion because:

"Movant chose to permit the entry of the order of April 29, 1964 by default and has complied in large measure, albeit under penalty of contempt, with that order."

On August 2, Judge Sugarman denied a motion to reargue.

In its Notice of Appeal filed September 29, 1966, Cambridge states that it is appealing from Judge Sugarman's August 2, 1966 order denying reargument. The appeal appears to be untimely (11 U.S.C. § 48); however, in its Statement Under Rule 15(b), Cambridge says that an order extending time to appeal was granted. (We have not seen this but it is listed on the Bankruptcy docket.) Nevertheless, the appeal must be dismissed. An order denying reargument is not appealable. Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 63 S.Ct. 133, 87 L.Ed. 146 (1942); Hawkins v. Lindsley, 327 F.2d 356 (2d Cir. 1964).

Even if the order denying reargument were appealable, or an appeal had been taken from the order of June 28, 1966, or this appeal were treated as an application for mandamus, Cambridge would be in no better position.³

At the outset, it should be emphasized that by failing to file a petition for review "within ten days after the entry" of the order of April 29 or "within such extended time as the court upon petition filed within such ten day period may for cause shown allow,"⁴ as required by § 39(c), 11 U.S.C. § 67(c), Cambridge waived any direct attack upon the order of default. Although Cambridge describes its motion before Judge Sugarman as one to direct the referee to consider a motion to vacate, it is in essence a petition to review the referee's refusal to vacate an order. It has been long settled that a referee has "the ancient and elementary power to reconsider" his orders. "That power is of course limited in duration where there are terms of court, but in bankruptcy there are none." In re Pottasch Bros. Inc., 79 F.2d 613, 616, 101 A.L.R. 1182 (2d Cir. 1935). See Smith v. Hill, 317 F.2d 539 (9th Cir. 1963); Castaner v. Mora, 234 F.2d 710 (5th Cir. 1956); 2 Collier on Bankruptcy ¶¶ 38.09 3, 39.17 (14th ed. 1966). Although it is generally agreed that the referee has discretion to reconsider his orders, there has been some recent dissent. Some district courts have reasoned that the 1960 amendments to § 39(c), which provided that extensions must be applied for within ten days and that "Unless the person aggrieved shall petition for review of such order within such ten-day period, or any extension thereof, the order of the referee shall become...