In re Forman, 26744.

• Decision Date: 27 May 1942
• Docket Number: No. 26744.,26744.
• Citation: 45 F. Supp. 295
• Parties: In re FORMAN.
• Court: U.S. District Court — Eastern District of New York

45 F. Supp. 295

In re FORMAN.

No. 26744.

District Court, E. D. New York.

May 27, 1942.

Peter J. Haberkorn, of New York City, for Louise Purssell, who claims to be a creditor, for the motion.

Duberstein & Schwartz, of Brooklyn, N. Y. (Max Schwartz, of Brooklyn, N. Y., of counsel), for Morris Forman, bankrupt-respondent opposed.

CAMPBELL, District Judge.

These are in reality two motions, made on behalf of Louis Purssell, who claims to be a creditor, and will be described herein as claimant, for orders, as follows:

I. Vacating and setting aside the order of this Court adjudicating Morris Forman a bankrupt on August 15, 1934, as well as the order of discharge dated the 20th day of September, 1933, upon the ground that such orders of this Court are a nullity in that this Court was without power to make the same or in the alternative.

II. Re-opening the bankrupt estate of Morris Forman, upon the ground that there are unadministered assets of such bankrupt estate, willfully and fraudulently concealed by the bankrupt.

I will consider the motions in their order.

The facts are as follows:

On August 15, 1934, the bankrupt filed a voluntary petition in bankruptcy in this Court, and was adjudicated a bankrupt on that date. Accompanying such petition were, schedules of the bankrupt's assets and liabilities, which were filed on the same day, and in which were set forth, with others, certain liabilities incurred by the bankrupt, by reason of his having been a member of the copartnership of L. Forman & Sons, one of which was, an obligation to Harry N. Cohen, on a promissory note payable to the order of Harry N. Cohen in the sum of $15,856.87.

On January 13, 1931, an involuntary petition in bankruptcy was filed in the United States District Court for the Southern District of New York, in which proceedings an order of adjudication was entered against "Louis Forman, Leon Forman and Morris Forman, copartners trading as L. Forman & Sons", in which proceeding a composition was thereafter confirmed.

There is a dispute as to whether the composition was by the said Formans only as members of the firm, or by them individually, and as members of the firm, but it is not necessary for me to decide that question, as it is not controlling here, at this time.

The note in question here was made to the order of said Harry N. Cohen, and was dated November 27, 1933, and was due six months from that date.

The claimant, Louise Purssell, claims to have received the note from her husband a few days after November 27, 1933.

I requested an affidavit from her stating how she became the owner and holder of the notes in question, but the affidavit submitted alleged only that she was the owner, but not how she became the owner.

The claimant never presented the note for payment, nor did she ever notify the bankrupt of her claim to ownership until March 21, 1942, when her counsel wrote the bankrupt. This was over eight years and three months after the date of the note; seven years and nine months after it became due, and over 6 years and 6 months after a discharge was granted to the bankrupt, on September 20, 1935.

Harry N. Cohen, the husband of said claimant, departed this life on April 17, 1936; over 5 years and 11 months prior to the sending, by the said attorney, of said letter to the bankrupt; and about 7 months after the bankrupt's discharge.

The said Harry N. Cohen was listed as a creditor, and had notice of the bankruptcy proceedings of the said bankrupt in this proceeding mailed to him at 72-34 Austin Street, Forest Hills, L. I.

The bankrupt and others were examined at length as to his assets and possible interest in corporations, and with respect to any interest in, or the ownership in, real estate, the transcribed stenographer's minutes of which examinations are not now to be found in the clerk's office of this Court, nor have any of the attorneys who appeared on such examination a copy thereof, and they cannot be replaced, as the original minutes of the stenographer have been destroyed, due to length of time that has elapsed since the examination was had.

The Court had jurisdiction of the individual bankruptcy proceeding in this district. Bluthenthal v. Jones, 208 U.S. 64, 28 S.Ct. 192, 52 L.Ed. 390; In re Wrobel, D.C., 18 F.Supp. 623; In re Early, D.C., 34 F.Supp. 774; In re Brown, D.C., 35 F.Supp. 619.

The case of In re Federman, 2 Cir., 119 F. 2d 754, cited on behalf of the claimant, is not in point, but is...