United States v. Liberman

• Decision Date: 20 January 1910
• Citation: 176 F. 161
• Parties: UNITED STATES v. LIBERMAN.
• Court: U.S. District Court — Eastern District of New York

176 F. 161

UNITED STATES v. LIBERMAN.

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

January 20, 1910

William J. Youngs, U.S. Atty. (William P. Allen, Asst. U.S. Atty., of counsel).

Abram J. Rose, for defendant.

CHATFIELD District Judge.

The defendant has been indicted by the grand jury of this district for perjury alleged to have been committed by the giving of false testimony with respect to material matters when under authorized examination, upon the 26th day of June 1908, before Richard P. Morle, Esq., as special commissioner in a bankruptcy proceeding brought against one Samuel Greenberg, in the District Court for this district, by the filing of an involuntary petition upon the 5th day of May 1908. A receiver was appointed upon the 19th day of May, and the special commissioner designated upon the 20th day of May by order.

The indictment also alleges that the special commissioner was authorized at the time to administer an oath, that the oath was administered, and that the examination then being conducted on the 26th day of May before the said commissioner was one in effect authorized by law at the time.

The language of the indictment did not admit of the filing of a demurrer, so upon being arraigned the defendant has made a motion to quash upon the proceedings in the bankruptcy case, as set forth by the indictment, and upon matters of record in the District Court, of which this court can take judicial notice.

The question involved has been argued upon the merits, and the United States has not attempted to oppose the hearing of facta can be in anticipation of the trial, inasmuch as no dispute of facts can be made, and as these facts are shown by the records available to the court without taking testimony.

An adjudication in the Matter of Greenberg was had upon the 21st day of May, 1908, and on that day a general order of reference of the proceedings subsequent to adjudication was made to a duly appointed referee in bankruptcy in this district. This order of reference was delivered to the referee by the 23d day of May, and the first meeting of creditors and the examination of the bankrupt was set down, there being some delay over the filing of schedules, for the 5th day of August, 1908. The order entered upon the 20th day of May, appointing a special commissioner and directing the examination of Liberman, was made under the provisions of section 21a of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 552 (U.S. Comp. St. 1901, p. 3430)), which is as follows:

'A court of bankruptcy may, upon application of any officer, bankrupt, or creditor, by order require any designated person, including the bankrupt and his wife, to appear in court or before a referee or the judge of any state court, to be examined concerning the acts, conduct, or property of a bankrupt whose estate is in process of administration under this act.'

Liberman was designated in this order as one of the petitioning creditors, who was alleged in the affidavit upon which the order was obtained to have been a party to the transfer and disposition by the bankrupt of his property immediately preceding the filing of their petition. It also appears in this affidavit that up to that time no receiver had been appointed and no one was in charge or protecting the property of the bankrupt, and it seemed to be necessary to take some action to protect the estate prior to the first meeting of the creditors, which could not be held for some time, and which in fact could not be noticed until after schedules or a list of creditors had been filed. In this particular case the list of creditors was finally filed by intervening creditors, and no schedules by the bankrupt were ever presented.

It has been sufficiently well settled that, under the powers of a court of bankruptcy as a court of equity, testimony of witnesses can be taken before an officer of the court, usually called in this circuit a 'special commissioner,' to distinguish him from a special master in the ordinary equity case, and the rules for the taking of testimony in equity (No. 67, etc.) are applicable thereto. In re Isaacson (decided in this district on November 9, 1909, and cases there cited) 175 F. 292.

This equity practice is especially authorized by General Order No. 22 (89 F. x, 32 C.C.A. xxv), adopted by the Supreme Court of the United States with reference to bankruptcy proceedings, and there would seem to be no doubt that under the provisions of section 21a, if any designated person, including the bankrupt, who is a competent witness under the laws of the state, is ordered to appear in court for examination, his examination may be taken by a special commissioner for the court, and that the special commissioner shall have the power to administer an oath. It is also evident that by the provisions of section 21a 'a court of bankruptcy' may at any time order such examination with respect to the 'acts, conduct, or property of a bankrupt whose estate is in process of administration.'

By section 1(7) of the bankruptcy statute, the word 'court' is defined as meaning 'the court of bankruptcy in which the proceedings are pending, and may include the referee,' while section 1(8) of the bankruptcy act provides that 'courts of bankruptcy' shall include the District Courts of the United States, etc. Referees have jurisdiction, by section 38(4), to 'perform such part of the duties, * * * as are by this act conferred...