Margolis v. Gem Factors Corp., No. 143
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | SWAN, , and CLARK and FRANK, Circuit |
| Citation | 201 F.2d 803 |
| Parties | MARGOLIS v. GEM FACTORS CORP. |
| Decision Date | 04 February 1953 |
| Docket Number | No. 143,Docket 22542. |
201 F.2d 803 (1953)
MARGOLIS
v.
GEM FACTORS CORP.
No. 143, Docket 22542.
United States Court of Appeals Second Circuit.
Argued January 7, 1953.
Decided February 4, 1953.
Isadore B. Hurwitz, New York City (Louis P. Rosenberg, Brooklyn, N. Y., on the brief), for plaintiff-appellant.
Louis J. Weinshenker, New York City (Weinshenker & Kenner, New York City, on the brief), for defendant-appellee.
Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.
CLARK, Circuit Judge.
The trustee in bankruptcy of Bri-Test Inc. brought this action in the district court to recover an allegedly preferential payment of $21,000 made to defendant by the bankrupt within four months of the filing of its Chapter XI, 11 U.S.C. § 701 et seq., petition. The amended complaint set forth two causes of action, the first to recover the preference under § 60 of the Bankruptcy Act, 11 U.S.C. § 96, and the second for the same relief under § 15 of the N. Y. Stock Corporation Law, McK.Consol. Laws, c. 59, applicable under Bankruptcy Act § 70, 11 U.S.C. § 110. Defendant's answer admitted receipt of the $21,000, but generally denied the other material allegations of the complaint.
Two pre-trial conferences formulated the issues to be tried. At the first conference the disputed issues on the first cause of action were narrowed to: (1) Was Bri-Test insolvent on July 10, 1950, the date of the $21,000 payment, and (2) did defendant have knowledge or reasonable cause to believe that Bri-Test was insolvent on that date? The issues raised by the second cause of action were formulated at the second conference in substance as follows: (1) Was the bankrupt insolvent, actual or imminent, in the sense of being unable to meet its obligations in due course, on the date in question; (2) was the $21,000 payment made with the intent of preferring defendant to other creditors; (3) did the payment result in such a preference; and (4) did defendant have notice or reasonable cause to believe that this payment would effect a preference?
At the close of plaintiff's case in a trial to a jury, defendant moved to dismiss the complaint on the merits for failure to establish a prima facie case on either cause of action. The court permitted plaintiff to introduce some further testimony and then, defendant having rested, granted defendant's motion without opinion. This ruling, from which plaintiff appeals, was error as to both causes of action.
There was surely sufficient evidence of Bri-Test's insolvency on July 10, 1950, to warrant submission of that issue to the jury. The schedules filed by the bankrupt with its petition on September 1, 1950, showed assets on that date of $88,525.00 as against liabilities of $285,665.41. Gould, the bankrupt's president, testified that his company had no assets on July 10 which were not reflected in the September 1 schedules, and that its liabilities on the earlier date might actually have been greater than those reported with the petition....
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In re Anjopa Paper & Board Manufacturing Co., No. 93218.
...natural, probable and only foreseeable end." Dalziel v. Rosenfield, supra, 265 N.Y. at 80, 191 N.E. at 842; Margolis v. Gem Factors Corp., 201 F.2d 803, 805 (2d Cir. 1953). On the other hand, a transfer made with a view to keep the company in business and eventually liquidate all debts does......
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In re Frigitemp Corp., No. 81 Civ. 3172 (ADS)
...a sound commercial basis for a finding of reasonable cause to believe. For example, the Second Circuit in Margolis v. Gem Factors Corp., 201 F.2d 803 (2nd Cir.1953) found sufficient evidence to go to the jury when a creditor knew of bank overdrafts, slow payments, and that one of the debtor......
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In re Hygrade Envelope Corp., No. 375
...565, 567 (2 Cir. 1927); Pender v. Chatham Phenix Nat. Bank & Trust Co., 58 F.2d 968, 970 (2 Cir. 1932); Margolis v. Gem Factors Corp., 201 F.2d 803, 805 (2 Cir. 1953); Robinson v. Commercial Bank of North America, 320 F.2d 106, 107-108 (2 Cir. 1963). Knowledge that a debtor securing advance......
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CA Swanson & Sons Poultry Company v. Wylie, No. 14852.
...re Brayton, D.C.N.D.N.Y.1922, 276 F. 1020; In re Clark, D.C.W.D.Mich. 1926, 11 F.2d 540. Cf. Margolis v. Gem Factors Corp., 2 Cir., 1953, 201 F.2d 803, 805. See also 3 Collier on Bankruptcy (14th Ed., 1941), § 60.54, p. 1008; 4-A Remington on Bankruptcy (5th Ed., 1943), § 1709, pp....
-
In re Anjopa Paper & Board Manufacturing Co., No. 93218.
...natural, probable and only foreseeable end." Dalziel v. Rosenfield, supra, 265 N.Y. at 80, 191 N.E. at 842; Margolis v. Gem Factors Corp., 201 F.2d 803, 805 (2d Cir. 1953). On the other hand, a transfer made with a view to keep the company in business and eventually liquidate all debts does......
-
In re Frigitemp Corp., No. 81 Civ. 3172 (ADS)
...a sound commercial basis for a finding of reasonable cause to believe. For example, the Second Circuit in Margolis v. Gem Factors Corp., 201 F.2d 803 (2nd Cir.1953) found sufficient evidence to go to the jury when a creditor knew of bank overdrafts, slow payments, and that one of the debtor......
-
In re Hygrade Envelope Corp., No. 375
...565, 567 (2 Cir. 1927); Pender v. Chatham Phenix Nat. Bank & Trust Co., 58 F.2d 968, 970 (2 Cir. 1932); Margolis v. Gem Factors Corp., 201 F.2d 803, 805 (2 Cir. 1953); Robinson v. Commercial Bank of North America, 320 F.2d 106, 107-108 (2 Cir. 1963). Knowledge that a debtor securing advance......
-
CA Swanson & Sons Poultry Company v. Wylie, No. 14852.
...re Brayton, D.C.N.D.N.Y.1922, 276 F. 1020; In re Clark, D.C.W.D.Mich. 1926, 11 F.2d 540. Cf. Margolis v. Gem Factors Corp., 2 Cir., 1953, 201 F.2d 803, 805. See also 3 Collier on Bankruptcy (14th Ed., 1941), § 60.54, p. 1008; 4-A Remington on Bankruptcy (5th Ed., 1943), § 1709, pp....