In re Weinger, Bergman & Co.

• Decision Date: 14 December 1903
• Citation: 126 F. 875
• Parties: In re WEINGER, BERGMAN & CO.
• Court: U.S. District Court — Southern District of New York

126 F. 875

In re WEINGER, BERGMAN & CO.

United States District Court, S.D. New York.

December 14, 1903

Abraham A. Joseph, for the motion.

Abraham I. Spiro, opposed.

HOLT District Judge.

This is a motion for a reargument of a motion to compel the replevying creditors and a city marshal (Samuel I. Abramson) to turn over to the receiver property taken by them in a replevin action. The affidavits on this motion, which are uncontradicted, show that a petition in involuntary bankruptcy was filed against the bankrupts at 2:10 p.m.on October 30, 1903. About the same time that afternoon, the marshal, Abramson, appeared at the store of the bankrupts with writs of replevin in two suits brought against the bankrupts in the municipal court of the city of New York for the Second District. The limit of jurisdiction of that court in such suits is stated to be $500. The marshal, under these writs, that afternoon, after he had been notified that the petition in bankruptcy had been filed, and an application made to this court for the appointment of a receiver, took and removed goods from the premises of the bankrupts of the value of about $3,000. The goods named in the requisitions were piece goods. The goods taken by the marshal were manufactured garments, constituting substantially all the made-up garments in the bankrupts' place of business. Neither the cloth nor the lining of any of these garments was made out of material described in the requisition, or which had ever belonged to the plaintiffs or their assignors. An injunction was thereafter issued by this court, restraining the marshal from parting with these goods. A motion was then made to direct the marshal to deliver said property to the receiver, which was granted; and this motion for a reargument is made on the ground that the replevin took place before the adjudication in bankruptcy that the property is therefore in the possession of the state court, and that therefore this court has no jurisdiction to direct the delivery of these goods to the receiver.

When any claim adverse to the bankrupt's estate is asserted by any person, a court of bankruptcy has power to ascertain whether such a claim had an actual basis, or was simply colorable or pretended, at the time of the filing of the petition. The court is bound to enter upon that inquiry, and in doing so acts within its jurisdiction. Mueller v Nugent, 184 U.S. 1, 22 Sup.Ct. 269, 46 L.Ed. 405. On the facts in this case, as they appear in the papers, the adverse claim is hardly even colorable. The marshal had no more right or jurisdiction, under the process in his hands, to take the property which he took, than to take any property anywhere. The seizure was an abuse of process, and each of the parties concerned in the seizure of the goods, who, knowing all the facts, willfully and intentionally took part in such proceedings, was guilty of larceny. I, of course, have not formed, and do not express, any opinion as to the guilt of the persons concerned in these proceedings, as there may be facts not stated in these papers which would lead to their exculpation; but I can only act upon the papers presented and upon those papers I entertain no doubt that this court has the right, and that it is its duty, to direct this marshal to deliver the possession of this property to the receiver.

Moreover in this case, in my opinion, no question can arise which is based on the theory that the state court first obtained jurisdiction. The petition in bankruptcy was filed in this court and notice of it was given to the marshal about the time the...