In re JH Small Shoe Co.

• Decision Date: 06 December 1926
• Docket Number: No. 100.,100.
• Citation: 16 F.2d 205
• Parties: In re J. H. SMALL SHOE CO. Petition of POTTER.
• Court: U.S. Court of Appeals — Second Circuit

16 F.2d 205 (1926)

In re J. H. SMALL SHOE CO.

Petition of POTTER.

No. 100.

Circuit Court of Appeals, Second Circuit.

December 6, 1926.

William Lesser and Benjamin Lesser, both of New York City, for petitioner.

Slade, Slade & Slade, of New York City (Benjamin Slade, of New York City, of counsel), for respondent.

Before HOUGH, HAND, and MACK, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

Assuming, though not deciding, that we may not look to the opinion as a summary of the evidence taken before the District Court, we have nothing before us except the petition, the answer, and the order. The sole question is whether, on these, some error of law appears.

We think that there does. The answer alleges in præsenti that the respondent does, "to the extent of his means, offer an adjustment of the trustee's claim, but the trustee has refused to accept said offer." The record being bare of anything but the pleadings, we are to decide whether the sum so admitted to be within the respondent's control was part of the fund with which he was charged in the order, or whether it was subsequently acquired. We think that, as the summary order, when entered, established prima facie the possession of the fund, any sum tendered in settlement must, until the contrary be shown, be also deemed part of that fund. To so much the trustee was in any case entitled, whether she refused the settlement or not. In the absence of any explanation, the order should at least have directed the payment of that amount. In any event, the answer contradicts the finding of the order here on appeal that the respondent was without ability to comply pro tanto. It may be, if the evidence was before us, that this difficulty would be resolved; but it is not. If we are not to look at the opinion, which would show error, if we did, the trustee is entitled to hold the respondent strictly to the pleadings.

As the case must go back, we think it proper to correct certain apparent misunderstandings on the part of the District Court. We held in Re Stavrahn, 174 F. 330, 98 C. C. A. 202, 20 Ann. Cas. 888, that upon contempt proceedings the summary order to surrender or pay made out a prima facie case. In Re Weber, 200 F. 404, 118 C. C. A. 556, we not only repeated this, but went further. We said that the respondent did not answer the prima facie case so made out by a bare denial that he could then comply with the order. At best, he has only two courses open to him: First, he may...