In re Fuller et al

• Citation: 67 L.Ed. 881,43 S.Ct. 496,262 U.S. 91
• Parties: In re FULLER et al
• Decision Date: 30 April 1923
• Court: United States Supreme Court

262 U.S. 91 43 S.Ct. 496 67 L.Ed. 881 In re FULLER et al. Submitted on Motion for Stay April 27, 1923. Decided April 30, 1923. Messrs. William J. Fallon, of White Plains, N. Y., and Eugene F. McGee and Arthur Garfield Hays, both of New York City, for appellant. Messrs. Francis L. Kohlman, Wm. M. Chadbourne, and Cyrus F. Smythe, all of New York City, for appellee. Mr. John Caldwell Myers, of New York City, for Joab H. Banton, as amicus curiae.

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djQ Mr. Chief Justice TAFT delivered the opinion of the Court. On June 26, 1922, a petition in involuntary bankruptcy was filed against Fuller and McGee, individually and as partners, in the name of E. M. Fuller & Co., in the District Court for the Southern District of New York. Thereafter Strasbourger was appointed receiver and at once demanded of the bankrupts the books of accounts, records, and documents, both of themselves individually and of the firm. The bankrupts claim that the books would tend to incriminate them and refused to turn them over, unless the receiver agreed that they were to be used in connection with the civil administration of bankrupts' estate only. A stipulation of this kind was made between the receiver and the attorneys for the bankrupts, with the further specific agreement that the books and records would not be turned over to any district attorney or used before any grand or petit jury. The district attorney, county of New York, then attempted to bring the books and records into the state court by serving a subpoena upon the receiver. Judge Augustus Hand, at the petition of the bankrupts, enjoined the receiver from turning the books over. On April 6, 1923, the attorneys for the bankrupts demanded of the receiver that he return the books and papers to them because his receivership had terminated by the appointment of a trustee in bankruptcy. The referee in bankruptcy directed the receiver to turn the books and papers over to the trustee without condition or restriction. On review, this order was affirmed by Circuit Judge Mack sitting in bankruptcy. April 21st last, all the books and papers were then delivered over to the trustee, except certain books and papers which had been redelivered by the receiver to the attorneys for the bankrupts on their receipts, which were turned over to

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the trustee. The bankrupts objected to turning over the books and papers thus receipted for by their attorneys to the trustee. Thereupon on April 24, 1923, Judge Mack made a second order directing the attorneys for the bankrupts and the bankrupts to turn over these records and papers so withheld by them to the trustee. n April 21st the district attorney of New York county had subpoenaed the trustee to produce the books and papers of the bankrupts he them had in his custody and on the 24th of April offered them in evidence in the Court of General Sessions of New York as evidence against E. M. Fuller under an indictment arising out of the business of the bankrupts. On the 25th of April Judge Mack granted an application for a stay pending proceedings for appeal to this court and an application for a stay here, and Judge Nott, presiding in the state court, adjourned the trial there until April 30th. Proceedings for appeal to this court have now been begun under the authority of Perlman

v.

United States, 247 U. S. 7, 38 Sup. Ct. 417, 62 L. Ed. 950, and the application for a stay of Judge Mack's two...