In re Kalmanowitz

• Citation: 211 F. 167
• Parties: In re KALMANOWITZ et al.
• Decision Date: 29 January 1914
• Court: U.S. District Court — Eastern District of New York

211 F. 167

In re KALMANOWITZ et al.

United States District Court, E.D. New York.

January 29, 1914

Henry B. Singer, of New York City, for trustee.

Abraham Vogel, of New York City, for bankrupts.

CHATFIELD District Judge.

The proceeding as originally instituted combined a claim that the present business conducted by the wives of the bankrupts was really a subterfuge for the concealment of assets to which the creditors of the bankrupts were entitled, with a claim that the bankrupts had concealed the assets of their previous business.

The report of the special commissioner and the previous record show that any concealment of assets was by the bankrupts themselves. The proceeding can be maintained, therefore, only as one to compel the bankrupts to turn over or account for the assets which they previously possessed, and the proof does not justify an order (in place of an equity action) taking the property in the hands of the wives, upon the theory that their title is fraudulent. To this extent the report of the commissioner should be confirmed.

As to the application to compel the bankrupts to turn over property, neither the report of the commissioner nor the proofs show accurately just what and how much property was concealed; and, while the finding that the bankrupts have not explained the disappearance of what assets they appear to have had is supported by the testimony, it is impossible to make an order directing them to turn over any specific amount, or any definitely described assets.

If the object sought is to obtain an order directing the bankrupts to disclose what they did with the property which has disappeared, then the present record would justify an order directing further accounting, and punishment for failure to account might follow. If, however, the creditors undertake the burden of proving that certain assets have disappeared, and seek to recover those assets or their value, they must present evidence clearly establishing a minimum value at least. They cannot supply the lack of proof by seeking to get the bankrupts liable to imprisonment for failure to obey the orders of the court.

Punishment for failure to satisfactorily account for assets (unless prescribed and prosecuted under the criminal statutes) can be imposed only as a result of a contempt proceeding. In a proceeding to compel the turning over of property, however some definite order, that some describable assets should...