In re Mero

• Decision Date: 18 March 1904
• Docket Number: 1,219.
• Citation: 128 F. 630
• Court: U.S. District Court — District of Connecticut
• Parties: In re MERO.

128 F. 630

In re MERO.

No. 1,219.

United States District Court, D. Connecticut.

March 18, 1904

J Birney Tuttle, for petitioners.

Harry W. Asher, for respondents.

PLATT District Judge.

The important parts of the petition are as follows:

'And your petitioners further represent the said John O. Mero is insolvent, and that within four months next preceding the date of this petition the said John O. Mero committed an act of bankruptcy, in that he did heretofore, to wit,

'(1) On the 18th day of January, 1904, suffer and permit while insolvent, Robert H. Nesbit and Stephen J. Warner, two of his creditors, to obtain a preference through legal proceedings, to wit, by allowing said creditors to obtain a lien for $130.00 on two horses, a wagon, coach, harness, and blankets for the keep of said property, by virtue of section 4167 of the General Statutes of Connecticut, and has not, within at least five days before the sale of such property on said lien, vacated or discharged such preference.

'(2) Transfer while insolvent all or part of his said property by permitting and assisting James E. McGann, another creditor, to make an attachment on same for the purpose of permitting said attachment to become absolute under the statute laws of the state, and thereby transferring title to same under said laws, with the intent to prefer said James E. McGann over his other creditors.

'(3) That said John O. Mero has within four months next preceding the filing of this petition transferred and removed large sums of money, his property, to New York City, as your petitioners are informed and believe, with intent to hinder, delay, or defraud his creditors, and that Carrie A. Mero, the wife and agent of said insolvent, stated at a meeting of his creditors held on the -- day of January, 1904, that said Mero had from July, 1903, up to about December 1, 1903, removed to New York about $7,000 in money, none of which money can now be found within this state.'

To the petition said John O. Mero demurs, because the complaint fails to allege:

'First. (a) When sale of the property mentioned in paragraph 1 of said complaint took place; (b) that notice of the time and place of said sale was given to the defendant by said Nesbit & Warner; (c) that the bankrupt within four months before the filing of the petition, or after the filing of the petition and before adjudication, procured or suffered a judgment to be entered against him in favor of said Nesbit & Warner, and the effect of such judgment will be to enable the said Messrs. Nesbit & Warner to obtain a greater percentage of their debt than any other of such creditors of the same class.

'Second. (a) What property the said bankrupt permitted and assisted the said James E. McGann to attach; (b) when said attachment was brought; (c) how much the said James E. McGann claimed; (d) to what court the said writ was returnable and when so returnable; (e) that the said bankrupt has, being insolvent, within four months before the filing of the petition, or after the filing of the petition and before adjudication, procured and suffered judgment to be entered against himself in favor of said McGann, or made transfer of any of his property, and the effect of such judgment or transfer will be to enable the said McGann to obtain a greater percentage of his debt than any other of such creditors of the same class; (f) that the bankrupt suffered or permitted, while insolvent, said James E. McGann to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of the property affected by such preference vacated or discharged such preference.

'Third. (a) Upon what dates said money was removed by said bankrupt to New York City, and to whom transferred or removed; (b) in what manner the said bankrupt indicated his intent to hinder, delay, or defraud his creditors by the transferring and removal of said large sums of money to New York City.

'Fourth. (a) That the defendant is neither a wage-earner nor a farmer.'

He also moves to strike out that portion of subdivision 3 beginning with the words, 'and that Carrie A. Mero,' etc., to the end, because the words are evidential.

The petitioners ask leave to amend subdivision 1 by adding the following:

'On January 14, 1904, the said Nesbit & Warner caused a notice of the sale of said property to be served upon said John O. Mero by a constable of the town of New Haven, a copy of which notice is as follows:

''New Haven, Ct., Jan. 14th, 1904.

"John Mero, City-- Dear Sir: You will please take notice that on the 21st day of January, 1904, at 10

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