In re Press Printers and Publishers

• Decision Date: 15 December 1924
• Citation: 4 F.2d 159
• Parties: In re PRESS PRINTERS AND PUBLISHERS, Inc. Petition of BABCOCK PRINTING PRESS MFG. CO., Inc.
• Court: U.S. District Court — District of New Jersey

4 F.2d 159 (1924)

In re PRESS PRINTERS AND PUBLISHERS, Inc. Petition of BABCOCK PRINTING PRESS MFG. CO., Inc.

District Court, D. New Jersey.

December 15, 1924.

A. P. Bachman, of New York City, for petitioner.

Leon E. Cone, of Morristown, N. J., for respondent.

RUNYON, District Judge.

The Press Printers and Publishers, Inc., a Morristown concern, and incorporated under New Jersey laws, was engaged in the newspaper and job printing business, when on January 30, 1923, an involuntary petition in bankruptcy was filed. The company was thereafter adjudicated a bankrupt, and a receiver appointed, who qualified and took control of the estate. This matter was referred to Referee De Coster, who made an order in which, among other things, he directed the present petitioner to show cause why the personal property of the bankrupt should not be sold "free and clear of all liens and incumbrances; a lien, if any, to attach to the proceeds."

Upon the return of said order, the referee, after argument, determined and by his further order directed said sale to be held, providing therein that a lien, if any, should attach to the proceeds. Pursuant thereto the sale was duly held and confirmed, and the referee designated as claims entitled to priority that of the landlord, one for labor, that of the Mergenthaler Linotype Company, and of Nathaniel C. Toms, trustee.

The present petition is not for the review of the referee's order, but for the issuance of a writ of mandamus to compel the payment of the Babcock claim. In other words, the petitioner, for all practical purposes, is seeking to substitute the writ of mandamus for a writ of error, and in so doing has, I believe, mistaken the nature of his proper remedy. "A mandamus cannot be used as a writ of error; nor is it ever granted where the party asking it has another remedy, as where the remedy is by an appeal." Morrison v. U. S. District Court, 147 U. S. 14, 13 S. Ct. 246, 37 L. Ed. 60. See, also, In re Baltimore & Ohio R. R., 108 U. S. 566, 2 S. Ct. 876, 27 L. Ed. 812.

The instrument in question bears the name of lease, but an examination of its contents convinces me that in reality it is a conditional sale agreement and therefore subject to the provisions of the Conditional Sales Act (P. L. N. J. 1919, p. 461). Paragraph 1, subd. 2, of said act, describes one sort of conditional sale as being "any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation a sum...