In re Zerbersky

• Decision Date: 01 December 1922
• Citation: 287 F. 600
• Parties: In re ZERBERSKY. v. FRANKEL et al. BECKER
• Court: U.S. District Court — Eastern District of New York

287 F. 600

In re ZERBERSKY.

BECKER v. FRANKEL et al.

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

December 1, 1922

James A. Nolan, Jr., of New York City, for complainant.

Herman J. Rubenstein, of New York City, for defendant Frankel.

Feinstein & Coleman, of Brooklyn, N.Y., for defendant Zerbersky.

GARVIN District Judge.

This is an action brought by a trustee in bankruptcy attacking an alleged fraudulent conveyance of real property to defendant Frankel by the bankrupt and his wife. The relief sought is a decree compelling Frankel to deliver the property to the trustee. The bill of complaint alleges the title of the real property was in the bankrupt, and the answer of the latter's wife denies this allegation, but fails to set forth any state of facts showing affirmatively that she and her husband were owners by the entirety of the property. By law she would have a dower interest therein.

The proofs show that the bankrupt caused the death of an infant as a result of which an action was brought against him, upon which a judgment was recovered on March 22, 1922. That action was pending on March 11, 1921, on which day the bankrupt transferred the property in question to Frankel. The check that was paid on the same date as a part of the consideration was the defendant Frankel's check. Weinburg, the bankrupt's brother-in-law, had told Frankel that the bankrupt had been involved in an accident with his (the bankrupt's) automobile, was in trouble, and wanted to sell the property in question. The same attorney represented Weinburg and Frankel, and had been their counsel for many years.

Weinburg withdrew $2,000 from his bank on March 11, 1921, and testified before the referee that he did not know why he withdrew it. At the trial he testified that he withdrew it to pay contractors, although he himself was not in business at that time. He has no records, such as bank books or account books; all have been destroyed. He made a most unfavorable impression as a witness. The records of the bank in which Frankel kept his account show that on January 21, 1921, when the contract to sell the property was made, $500 was deposited. On March 11, 1921, $2,000 in cash was deposited in his account. On the same day a check for $2,000 on Frankel's account was drawn. This was paid to the bankrupt, who in turn paid it to Weinburg, who was thus reimbursed for the $2,000 he withdrew on the same date. Frankel has never explained where he obtained the $2,000 in cash which he deposited the same day, as above set...