In re Co-operative Knitting Mills

E.D. New York

In re Co-operative Knitting Mills

202 F. 1016, 1913 U.S. Dist. LEXIS 1836

DecidedFebruary 5, 1913

StatusPublished

This text of 202 F. 1016 (In re Co-operative Knitting Mills) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Co-operative Knitting Mills, 202 F. 1016, 1913 U.S. Dist. LEXIS 1836 (E.D.N.Y. 1913).

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Opinion

CHATFIELD, District Judge.

[1] The Pennsylvania Yarn Company have asked for an order directing the filing óf a claim herein and reversing the decision of the referee, which is worded as follows:

“The statute requires that all claims must be filed within a certain period. The claim was not filed within the required period as the attorneys have been notified and informed by letter of referee of Dee. 7, 1912, giving full statement of matter. An order cannot be entered nunc pro tunc to bring the filing within a statutory period.”

No reference to the proof of claim appears on the records of the court, although the moving papers allege that the original proof was offered for filing at the office of the referee in bankruptcy, upon the 11th day of September, 1912. The referee has certified that according to his records no claim was filed, that September 28, 1912, was one day after the expiration of the time of filing claims, and that the clerk with whom the papers were claimed to have been left was not in his office at the time. Adjudication occurred upon the 28th day of September, 1911, and the year thereafter would not expire until September 28, 1912, nor does the referee state the facts upon which he draws the conclusion that his clerk was not in his office upon the day in question. His conclusion is not within the scope of a certificate of this sort.

[2] The creditor presented affidavits which did not serve the purpose of answering the questions raised. An issue of fact was therefore presented, and this is all that is now before the court. The present motion is brought under subdivision 10 of section 2 of the statute (Act July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3420]), which gives the District Court authority to “consider and confirm, modify or overrule, or return, with instructions for further proceed[1018]*1018ings, records and findings certified to them by referees.” In the decision which the referee made herein, refusing to file the claim in question, he cited an explanation of his position in a letter written by him, under date of December 7, 1912. His stated reason for refusing to file the claim after the expiration-of one year is “that an order cannot be entered nunc pro tunc to bring the filing within the statutory period.”

This statement of law is entirely correct, but the referee’s decision was not based upon a hearing, and in fact no proofs at all were put into the record beyond the original affidavits. The question of fact as to whether any proof of claim was presented at the referee’s office for filing, and therefore whether the requirements of the statute were actually complied with so that the claim should be added to the list of those filed must be disposed of after a hearing, either upon affidavits or by the calling of witnesses, and, inasmuch as the referee himself will probably have to he a witness, it seems best to refer the question as to whether this claim was ever presented within the year to another referee for determination.

An order may be entered referring the question of an offer of this claim within the statutory period to Robert F. Tilney, referee.

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CHATFIELD, District Judge.

[1] The Pennsylvania Yarn Company have asked for an order directing the filing óf a claim herein and reversing the decision of the referee, which is worded as follows:

“The statute requires that all claims must be filed within a certain period. The claim was not filed within the required period as the attorneys have been notified and informed by letter of referee of Dee. 7, 1912, giving full statement of matter. An order cannot be entered nunc pro tunc to bring the filing within a statutory period.”

No reference to the proof of claim appears on the records of the court, although the moving papers allege that the original proof was offered for filing at the office of the referee in bankruptcy, upon the 11th day of September, 1912. The referee has certified that according to his records no claim was filed, that September 28, 1912, was one day after the expiration of the time of filing claims, and that the clerk with whom the papers were claimed to have been left was not in his office at the time. Adjudication occurred upon the 28th day of September, 1911, and the year thereafter would not expire until September 28, 1912, nor does the referee state the facts upon which he draws the conclusion that his clerk was not in his office upon the day in question. His conclusion is not within the scope of a certificate of this sort.

[2] The creditor presented affidavits which did not serve the purpose of answering the questions raised. An issue of fact was therefore presented, and this is all that is now before the court. The present motion is brought under subdivision 10 of section 2 of the statute (Act July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3420]), which gives the District Court authority to “consider and confirm, modify or overrule, or return, with instructions for further proceed[1018]*1018ings, records and findings certified to them by referees.” In the decision which the referee made herein, refusing to file the claim in question, he cited an explanation of his position in a letter written by him, under date of December 7, 1912. His stated reason for refusing to file the claim after the expiration-of one year is “that an order cannot be entered nunc pro tunc to bring the filing within the statutory period.”

This statement of law is entirely correct, but the referee’s decision was not based upon a hearing, and in fact no proofs at all were put into the record beyond the original affidavits. The question of fact as to whether any proof of claim was presented at the referee’s office for filing, and therefore whether the requirements of the statute were actually complied with so that the claim should be added to the list of those filed must be disposed of after a hearing, either upon affidavits or by the calling of witnesses, and, inasmuch as the referee himself will probably have to he a witness, it seems best to refer the question as to whether this claim was ever presented within the year to another referee for determination.

An order may be entered referring the question of an offer of this claim within the statutory period to Robert F. Tilney, referee.

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Bluebook (online)

202 F. 1016, 1913 U.S. Dist. LEXIS 1836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-co-operative-knitting-mills-nyed-1913.