In re Barnes Gear Co.

259 F. 320, 1919 U.S. Dist. LEXIS 1091

• Court: District Court, N.D. New York
• Decided: July 11, 1919
• Status: Published

Opinion

RAY, District Judge.

The salient and controlling facts are stated in my opinion in In re Barnes Gear Co. (D. C.) 251 Fed. 764, and it is not necessary to repeat here.

It is contended by the New York Air Brake Company: (1) That it is not a party to the bankruptcy proceedings; (2) that it should be allowed to prove its damages for nonperformance of the contract by the Barnes Gear Company and offset same against the money which came due the receiver under the order of this court made July 26, 1917, amounting to $4,461.65; and (3) that the receiver or trustee should be relegated to a plenary suit to recover such money.

1. It seems to me clear that, when the New York Air Brake Company came into this court, and filed its petition for an order for the delivery to it of the property then in the possession of the receiver, and obtained the order referred to, which provided for the payment to the receiver of the money referred to when its amount should be ascertained, from which no appeal was taken by either party, it made itself a party to the bankruptcy proceedings.

2. It seems equally clear that having obtained the order, obtained the property from the receiver under its provisions, when the amount due the receiver under its provisions was ascertained, it became the duty of the New York Air Brake Company to pay it over pursuant to such order.

3. I see no necessity for or propriety in relegating the receiver to a plenary suit under such circumstances and conditions.

4. It is not a case of mutual accounts and demands.

I adhere to my former opinion and decision, and there will be an order accordingly.