In re Neaderthal
| Decision Date | 13 April 1915 |
| Docket Number | 208. |
| Citation | 225 F. 38 |
| Parties | In re NEADERTHAL et al. v. EISENBACH. FREUNDLICH et al. |
| Court | U.S. Court of Appeals — Second Circuit |
David Steckler, of New York City, for appellants.
Rosenthal & Heermance, of New York City (David Haar, of New York City of counsel), for appellee.
Before LACOMBE, COXE, and ROGERS, Circuit Judges.
The referee allowed a claim of $9,445.58 against the bankrupts' estate, filed by the appellants. The District Court reversed this order and disallowed the claim as filed.
The appellants are executors and trustees under the will of Rose Neaderthal, deceased, who was the mother of Samuel and William. These persons and William Plapinger, were the members of the firm of Wm. Neaderthal & Co. of which firm the bankrupts are the surviving partners. William died in April 1911, and on his death the testatrix received $16,000 insurance upon his life. Of this amount she loaned the bankrupt firm about $12,000, as follows: On April 14, 1911 she made a loan of $8,000; on April 30, 1912, a further loan of $3,000 to the bankrupt firm and on June 27, 1912, another loan to them for $1,000, and received the firm's notes therefor. She died in December, 1912, leaving a will by which she directed that her residuary estate should be divided into five equal parts, one of which, about $2,400, is payable to the bankrupt, Samuel Neaderthal, as residuary legatee. This is the sum which the bankrupts seek to set off against the indebtedness of the bankrupt firm. The trustee objected to this being done, but the referee permitted the claim to stand as filed. The District Judge overruled this decision on the ground that any set-off or counterclaim must come within the provisions of section 68 relating to set-offs and counterclaims. Subdivision 'a' of section 68 of the law is as follows:
'In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.'
The executors under Rose's will presented a claim against the bankrupt firm in which they credit $2,400, the interest of the bankrupt Samuel Neaderthal in the estate of Rose Neaderthal. This set-off is disputed because it is not a case of mutual debts and credits. It seems to us that the bankruptcy act does not permit the appellants Freundlich and Samuel Neaderthal to set...
To continue reading
Request your trial
-
Rochelle v. U.S.
...Co., 346 F.2d 492 (CA2, 1965). 15 Examples of case (d) include Tucker v. Oxley, 9 U.S. (5 Cranch.) 34, 3 L.Ed. 29 (1809), In re Neaderthal, 225 F. 38 (CA2, 1915), 16 and the instant All of the cases in this second situation may satisfy the requirement of mutuality where the partnership debt......
-
Rochelle v. United States
...court in an earlier case chose to adhere to the maxim rather than its exception and Rochelle naturally points to the case, In re Neaderthal, 225 F. 38 (2d Cir.), cert. denied, 238 U.S. 635, 35 S.Ct. 939, 59 L.Ed. 1499 (1915), as holding that a partnership creditor cannot discharge an obliga......
-
Evergreen Farms Co. v. WILLACY COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1.
...the lower court was justified in denying the offset. See Kaufman County Levee District v. Mitchell, 5 Cir., 116 F.2d 959; In re Neaderthal, 2 Cir., 225 F. 38; Lowden v. Northwestern National Bank & Trust Company, 8 Cir., 84 F.2d We also think the lower court could, in its discretion, allow ......
- The Minnie