In re Wentworth Lunch Co.

• Decision Date: 16 March 1908
• Docket Number: 213.
• Citation: 159 F. 413
• Parties: In re WENTWORTH LUNCH CO.
• Court: U.S. Court of Appeals — Second Circuit

159 F. 413

In re WENTWORTH LUNCH CO.

No. 213.

United States Court of Appeals, Second Circuit.

March 16, 1908

R. R Billington, for appellant.

M. P Davidson (Alfred Yankauer, of counsel), for appellee.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD Circuit Judge.

To an involuntary petition in bankruptcy against the Wentworth Lunch Company, the alleged bankrupt answered:

'That such Wentworth Lunch Company is and has ever been authorized and permitted by its certificate of incorporation to manage and conduct and carry on a restaurant and saloon. That the said Wentworth Lunch Company for the greater portion of six months next preceding the date of the filing of said petition has been engaged in carrying on a restaurant and saloon at Nos. 86 and 88 Fulton street, wherein are distributed foods and liquors at retail, and that said foods and liquors were consumed on the premises. That the said Wentworth Lunch Company is not and has never been engaged principally in manufacturing, trading, printing, publishing, mining, or mercantile pursuits, nor has it ever been engaged in any pursuit or business or trade or enterprise that would bring it within the purview of the bankruptcy act and any or all of its amendments.'

The district judge held that the corporation was engaged principally in trading and mercantile pursuits, within the meaning of the act, adjudged it an involuntary bankrupt, and the bankrupt appeals.

The act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 544 (U.S. Comp St. 1901, p. 3418)) provides that 'any corporation engaged principally in manufacturing, trading, printing publishing or mercantile pursuits' may be adjudged an involuntary bankrupt. Obviously it was the intention of Congress to restrict by definition the kinds of corporation which might be so adjudged. All corporations for profit were not included; for example, such as operate bathing establishments, barber shops, billiard saloons, bowling alleys, circulating libraries, pawnshops, shooting galleries, etc. The fact that the language of the act of 1898 is much narrower than that of the act of 1867 which applied 'to all moneyed business or commercial corporations and joint-stock companies,' and that it was amended in 1903 by inserting the word 'mining,' is additional evidence of the intention of Congress to restrict the corporations falling within it. This court has so construed the act in Re New York & New Jersey Ice...