Frank v. Drinc-O-Matic, Inc.

Second Circuit

Frank v. Drinc-O-Matic, Inc.

136 F.2d 906, 1943 U.S. App. LEXIS 3168

Court of Appeals for the Second Circuit·Decided June 11, 1943·No. 289·Published·Cited by 16 cases

Opinion

PER CURIAM.

This is an appeal from an order in bankruptcy, directing the sale for $9500 of nineteen automatic vending machines belonging to the debtor, which were in the possession of their manufacturer, who claimed a lien upon them in the sum of $4,754.79. It is not necessary to state in detail the evidence which justified the sale in the minds of the special master and the district judge who confirmed his report. Notice of the application was given to all known creditors, and the situation of the debtor was such as might well make it desirable to release the machines from the vendor’s claim even if its validity was questionable, which there is no reason to suspect. The trustee had no funds with which to redeem the machines, and after six months no plan of reorganization had been proposed. Possibly, though not certainly, the sale will force on a liquidation; in any event that is not a controlling consideration. The petition having been approved, the court had power to sell any property of the debtor, “upon such terms and conditions as the judge may approve.” § 116 (3) of the Bankruptcy Act, 11 U.S.C.A. § 516(3). To succeed the appellants must persuade us to substitute our discretion for that of the district court, and that under familiar principles we should not, and will not do.

Order affirmed.

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PER CURIAM.

This is an appeal from an order in bankruptcy, directing the sale for $9500 of nineteen automatic vending machines belonging to the debtor, which were in the possession of their manufacturer, who claimed a lien upon them in the sum of $4,754.79. It is not necessary to state in detail the evidence which justified the sale in the minds of the special master and the district judge who confirmed his report. Notice of the application was given to all known creditors, and the situation of the debtor was such as might well make it desirable to release the machines from the vendor’s claim even if its validity was questionable, which there is no reason to suspect. The trustee had no funds with which to redeem the machines, and after six months no plan of reorganization had been proposed. Possibly, though not certainly, the sale will force on a liquidation; in any event that is not a controlling consideration. The petition having been approved, the court had power to sell any property of the debtor, “upon such terms and conditions as the judge may approve.” § 116 (3) of the Bankruptcy Act, 11 U.S.C.A. § 516(3). To succeed the appellants must persuade us to substitute our discretion for that of the district court, and that under familiar principles we should not, and will not do.

Order affirmed.

Frank v. Drinc-O-Matic, Inc., 136 F.2d 906, 1943 U.S. App. LEXIS 3168 (2d Cir. 1943).

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