Syracuse Engineering Co. v. Haight, No. 320.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit
• Citation: 97 F.2d 573
• Parties: SYRACUSE ENGINEERING CO., Inc., et al. v. HAIGHT.
• Docket Number: No. 320.
• Decision Date: 13 June 1938

97 F.2d 573 (1938)

SYRACUSE ENGINEERING CO., Inc., et al.
v.
HAIGHT.

No. 320.

Circuit Court of Appeals, Second Circuit.

June 13, 1938.

97 F.2d 574

Laurence Sovik, of Syracuse, N. Y., for appellant.

Lionel O. Grossman and Stewart F. Hancock, both of Syracuse, N. Y. (Morris Berman, of Syracuse, N. Y., of counsel), for appellees.

Costello, Cooney & Fearon, of Syracuse, N. Y., for Keith F. Driscoll.

Albert J. Oot, of Syracuse, N. Y., for trustee as amicus curiæ.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit judges.

L. HAND, Circuit Judge.

This is an appeal from an order in bankruptcy adjudging one, Brown, a bankrupt; the appellant is not Brown himself, but Haight, the receiver of the Salt Springs National Bank, who attached all Brown's property on April 9, 1936, and got judgment on May 20th. The act of bankruptcy alleged was Brown's suffering this attachment while insolvent, and failing to discharge it within thirty days thereafter. Section 3a (4) of the Bankruptcy Act, 11 U.S.C.A. § 21(a) (4). Three creditors filed the petition on May 22, 1936; Brown answered, and Haight intervened pro interesse suo and also answered (there has been some question whether Brown did not withdraw his answer, but that is irrelevant). Two issues alone are involved: whether the three petitioners were creditors, and whether Brown was insolvent on April 9, 1936. The record is very confusing. The judge wrote no opinion and made no findings — supposing that the parties would not appeal — and the statement of evidence was very irregularly "approved". However, we have concluded that he really meant to "approve it" under Equity Rule 75(b), 28 U. S.C.A. following section 723; having jurisdiction in any event, we can proceed. Nevertheless Haight will not recover his

97 F.2d 575

disbursements for printing that part of the record which was not necessary to the determination of the relevant issues

There was no proof that any of the petitioners were creditors. As to the first one — Syracuse Engineering Company which alleged that it was a creditor for labor and materials in the sum of $2,478.95 — the only pretence of evidence is an entry in Exhibit I of a joint claim of C. F. Stanton Engineering Co. and G. Norman Knaus for labor and materials in the sum of $3,122.84. Exhibit I was a sworn statement of Brown's assets and liabilities, prepared in his lawyers' office on February 7, 1936 as of February 1; its purpose and use are not disclosed, and it was plain hearsay and therefore incompetent against Haight, whose interest was not the same as Brown's. The attempted defence of its introduction is that it was a declaration against Brown's interest, but Brown was alive, and death, or at least inaccessibility, is a condition upon this exception to the hearsay rule, Wigmore, § 1456. Nevertheless, Haight did not challenge it as hearsay, when it was offered; he said that there had been "no proper foundation laid" — whatever that might mean — that it did "not purport to show the values of certain properties", and that it spoke from February 1st instead of from April 9th. These objections were meaningless, so far as we can see, and the judge was right to admit it. But when admitted, it did not prove that the Syracuse Company was a creditor; the only apparent connection between that company and the C. F. Stanton Engineering Company and G. Norman Knaus was that Knaus verified the petition for adjudication as to the petitioner's president. The names and amounts were substantially different; and Knaus may well have shared a claim personally with the Stanton Company, in which the Syracuse Company had no interest whatever. The next...