In re Lewensohn
| Decision Date | 25 February 1903 |
| Docket Number | 53. |
| Parties | In re LEWENSOHN. [1] |
| Court | U.S. Court of Appeals — Second Circuit |
Max J Kohler, for petitioners.
Jesse Epstein, for respondent.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.
The petition of review presents a question of practice of considerable importance. The order of the court below has sanctioned a proceeding by one of the creditors of the bankrupt, instituted without the concurrence of the trustee to re-examine the claims of various other creditors which have been proved and allowed. Such a practice, when the estate and the interests of all the creditors are represented by a trustee, does not subserve any necessary purpose, and opens the door to grave abuse. It enables one creditor at his own pleasure to subject any one of the other creditors, or all the other creditors to the inconvenience and expense of unnecessary litigation, and to unduly protract the settlement of the estate. It is not allowed, in terms, by any provision of the bankrupt act. The whole subject of the proof and allowance of claims and their re-examination is covered by section 57, c. 541, Act July 1, 1898, 30 Stat. 560 (U.S. Comp. St. 1901, p. 3443). The provisions of this section which relate more particularly to the present question are these:
None of these provisions touch the question directly, and the act is silent as to the party by whom a re-examination may be moved.
The trustee represents every creditor. The orderly conduct of the administration requires that a proceeding for the re-examination of the claim should be taken in the interests of all the creditors, and not be permitted at the instance of any one creditor unless demanded by the interests of all. If the trustee should, without sufficient reason, refuse to proceed, the court, by its order, could compel him to do so or remove him for disobedience. It has been held under the present act that a creditor cannot prosecute an appeal from the judgment of a court of bankruptcy allowing the claim of another creditor, and that the trustee is the only party who can do so. Chatfield v. O'Dwyer, 42 C.C.A. 30, 101 F. 797...
To continue reading
Request your trial
-
Morris v. Zimmer (In re Zimmer)
...and to unduly protract the settlement of the estate. Fred Reuping Leather, 102 F.2d at 373 (quotations omitted)(quoting In re Lewensohn, 121 F. 538 (2d Cir. 1903) ).While the opinion in Fred Reuping Leather did not expressly say so, it can be surmised that a textual basis for courts limitin......
-
In re Jayrose Millinery Co.
...D.Mass.). This court has jurisdiction to make that correction, and it is so ordered. 1 Brought up by petition to review: In re Lewensohn, 121 F. 538 (C.C.A.2); In re W. A. Paterson Co., 186 F. 629, 34 L.R.A.(N.S.) 31 (C.C.A.8); In re Munsie, 33 F.2d 79 (C.C.A.2) appeal by leave of this Brou......
-
In re Woodmar Realty Company
...to situations in which the trustee clearly and unreasonably refused to act or in which there was no trustee. See, e.g., In re Lewensohn, 2 Cir., 121 F. 538, certiorari denied H. Bauendahl & Co. v. Jacob S. Bernheimer & Bro., 189 U.S. 513, 23 S.Ct. 853, 47 L.Ed. 924; In re Fine, D.C.Conn., 3......
-
Gray v. Grand Forks Mercantile Co.
... ... U.S. 155, 23 L.Ed. 843; Atlantic Trust Co. v. Dana, ... 62 C.C.A. 657, 670, 128 F. 209, 222; Chatfield v ... O'Dwyer, 42 C.C.A. 30, 101 F. 797; In re ... Utt, 45 C.C.A. 32, 105 F. 754; Foreman v ... Burleigh, 48 C.C.A ... [138 F. 346] ... 376, ... 109 F. 313; In re Lewensohn, 57 C.C.A. 600, 121 F ... 538. By the decree challenged by this appeal it was adjudged ... that the claims of Murphy, McNamara, Blair, and Lynch ... represent legitimate expenses and costs of administration; ... that the claim of Carroll, while not of this character, is ... yet a lawful one, ... ...