In re Retail Chemists Corporation, No. 445.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, AUGUSTUS N. HAND, and CHASE, Circuit
PartiesIn re RETAIL CHEMISTS CORPORATION. IRVING TRUST CO. v. CLIMAX RUBBER CO. et al.
Docket NumberNo. 445.
Decision Date01 August 1933

66 F.2d 605 (1933)

In re RETAIL CHEMISTS CORPORATION.
IRVING TRUST CO.
v.
CLIMAX RUBBER CO. et al.

No. 445.

Circuit Court of Appeals, Second Circuit.

August 1, 1933.


Root, Clark & Buckner, of New York City, and Cummings & Lockwood, of Stamford,

66 F.2d 606
Conn. (William P. Palmer, of New York City, and Raymond E. Hackett, of Stamford, Conn., of counsel), for appellant

Palmer, Barber, Matters & Merritt, of St. Louis, Mo. (Bernard J. Thole, of counsel), for appellee A. S. Albrecht.

Abraham D. Slavitt, of South Norwalk, Conn. (Sidney Vogel, of South Norwalk, Conn., of counsel), pro se, and for appellee Climax Rubber Co.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

Retail Chemists Corporation, a New York corporation, filed a voluntary petition in bankruptcy in the United States District Court for the Southern District of New York on July 27, 1932. On the same day the Irving Trust Company was appointed and qualified as receiver in bankruptcy and continued to act as receiver until August 12, 1932, when its election as trustee in bankruptcy was approved by the referee.

Until shortly before the bankruptcy proceedings, the bankrupt corporation had been known as the Whelan Drug Company and had owned and operated a chain of drug stores known as Whelan Drug Stores located in some thirteen states, including ten stores in Connecticut. About a month before the petition was filed, there had been organized a Delaware corporation called the Whelan Drug Company of Delaware, Inc., to which the bankrupt transferred all the stores that were to continue in operation, in consideration of which the Delaware company assumed all the debts of the bankrupt and issued to the bankrupt all its capital stock. Thereupon local Whelan companies were organized to operate the stores in their respective states, including a Whelan Drug Company, Inc., organized under the laws of Connecticut, to which the Delaware company transferred the ten stores operating in Connecticut, and which issued to the Delaware company all of its capital stock except shares to the value of $1,000 which the Delaware company had already acquired for cash. As a result of these transactions, the bankrupt owned all the stock in the Delaware company, which in turn owned all the stock of the Connecticut company, which owned the stores.

On August 30, 1932, on motion of the trustee in bankruptcy, an order was entered in the United States District Court for the Southern District of New York declaring that all of the above-mentioned transfers were null and void under sections 67e, 70a (5) and 70e of the Bankruptcy Act, 11 U. S. C. §§ 107 (e), 110 (a) (5), (e), 11 USCA §§ 107 (e), 110 (a) (5), (e), that the transfers of the property in Connecticut were void under the laws of that state, and declaring that title to all the assets of the Delaware company and the local companies should vest in the trustee in bankruptcy. It is conceded by the trustee on this appeal that the transfers of the Connecticut stores did not comply with the Connecticut Bulk Sales Law, Conn. Gen. St. 1930, § 4703.

On July 28, 1932, Abraham D. Slavitt presented in the United States District Court for the District of Connecticut a petition for the appointment of an ancillary receiver in bankruptcy of the Retail Chemists Corporation, alleging that he was the attorney for Climax Rubber Company, a creditor of the bankrupt, and that it was necessary for the preservation of the bankrupt's estate within the district that an ancillary receiver should be appointed. Upon this petition, the District Judge made an ex parte order that A. S. Albrecht, of Hartford, Connecticut, be appointed receiver within the district. On August 11, 1932, Irving Trust Company as receiver submitted a motion to vacate the appointment of the ancillary receiver, to which Slavitt filed exceptions. A verified petition by the Irving Trust Company as trustee and former receiver was then submitted, attached to which was an affidavit of Jacob Stein, reciting that he was the sole proprietor of the Climax Rubber Company, doing business in New York City, that he was a creditor of the bankrupt, and that he had not authorized any one to use his claim as the basis for a petition for the appointment of an ancillary receiver of the Retail Chemists Corporation in Connecticut. The District Judge granted a hearing upon this motion on August 22, 1932, which he denied in the order appealed from dated October 5, 1932. On October 10th, the trustee filed a petition for leave to appeal in the District Court, and subsequently a motion for an order allowing an appeal was granted by this court.

The trustee contests the validity of the action of the District Court in refusing to vacate its order appointing an ancillary receiver upon the ground that no facts were alleged or proved from which it could be found that the appointment of an ancillary receiver was necessary for the preservation of the estate, and upon the ground that the application for such appointment was not made by a party in interest, since Stein had denied that Slavitt

66 F.2d 607
had authority to use the Climax Rubber Company's claim as the basis for a petition. Briefs in support of the order have been filed by attorneys for A. S. Albrecht, the ancillary receiver, and by Slavitt both on his own behalf and for the Climax Rubber Company. There has also been filed in this court an affidavit of Jacob Stein, stating that he has not authorized the filing of a brief for the Climax Rubber Company on this appeal

The first ground for reversal urged by the appellant we do not need to discuss...

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11 practice notes
  • F. PALICIO y COMPANIA, SA v. Brush, No. 61 Civ. 2299.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 1966
    ...represent a litigant. E. g., Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658 (1927); In re Retail Chemists Corp., 66 F.2d 605 (2 Cir. 1933); Sutherland v. International Ins. Co., 43 F.2d 969 (2 Cir. 1930). This question, usually raised by motion in the action, may, an......
  • Booth v. Fletcher, No. 6950.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 19, 1938
    ...Ins. Co., 2 Cir., 43 F.2d 969, certiorari denied 282 U.S. 890, 51 S.Ct. 103, 75 L. Ed. 785. See also, In re Retail Chemists Corp., 2 Cir., 66 F.2d 605, 27 Pueblo of Santa Rosa v. Fall, supra note 26, quoting with approval from Washington J., in The King of Spain v. Oliver, Fed.Cas.No.7814, ......
  • Techem Chemical Co., Ltd. v. M/T CHOYO MARU, Civ. No. T-74-1398.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 25, 1976
    ...vol. 3A (1974), ¶ 17.15-1, p. 601. Cf. Meredith v. The Ionian Trader, 279 F.2d 471 (2 Cir. 1960); In re Retail Chemists Corporation, 66 F.2d 605 (2 Cir. 1933). And see The Nichiyo Maru, 89 F.2d 539 (4 Cir. The seizure of the vessel has subjected defendant shipowner to substantial loss and e......
  • In re Today's Destiny, Inc., Case No: 05-90080 (Bankr. S.D. Tex. 5/1/2009), Case No: 05-90080.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • May 1, 2009
    ...dispute the authority of the opposing attorney to act for the party in whose name he is proceeding . . ." In re Retail Chemists Corp., 66 F.2d 605, 608 (2nd Cir. 1933) (citing Pueblo of Santa Rose v. Fall, 273 U.S. 315, 319 (1927)). Courts "have undoubted power to require counsel before us ......
  • Request a trial to view additional results
11 cases
  • F. PALICIO y COMPANIA, SA v. Brush, No. 61 Civ. 2299.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 21, 1966
    ...represent a litigant. E. g., Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658 (1927); In re Retail Chemists Corp., 66 F.2d 605 (2 Cir. 1933); Sutherland v. International Ins. Co., 43 F.2d 969 (2 Cir. 1930). This question, usually raised by motion in the action, may, an......
  • Booth v. Fletcher, No. 6950.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 19, 1938
    ...Ins. Co., 2 Cir., 43 F.2d 969, certiorari denied 282 U.S. 890, 51 S.Ct. 103, 75 L. Ed. 785. See also, In re Retail Chemists Corp., 2 Cir., 66 F.2d 605, 27 Pueblo of Santa Rosa v. Fall, supra note 26, quoting with approval from Washington J., in The King of Spain v. Oliver, Fed.Cas.No.7814, ......
  • Techem Chemical Co., Ltd. v. M/T CHOYO MARU, Civ. No. T-74-1398.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 25, 1976
    ...vol. 3A (1974), ¶ 17.15-1, p. 601. Cf. Meredith v. The Ionian Trader, 279 F.2d 471 (2 Cir. 1960); In re Retail Chemists Corporation, 66 F.2d 605 (2 Cir. 1933). And see The Nichiyo Maru, 89 F.2d 539 (4 Cir. The seizure of the vessel has subjected defendant shipowner to substantial loss and e......
  • In re Today's Destiny, Inc., Case No: 05-90080 (Bankr. S.D. Tex. 5/1/2009), Case No: 05-90080.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • May 1, 2009
    ...dispute the authority of the opposing attorney to act for the party in whose name he is proceeding . . ." In re Retail Chemists Corp., 66 F.2d 605, 608 (2nd Cir. 1933) (citing Pueblo of Santa Rose v. Fall, 273 U.S. 315, 319 (1927)). Courts "have undoubted power to require counsel before us ......
  • Request a trial to view additional results

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