In re Fiske

190 F. 1018, 111 C.C.A. 666, 1911 U.S. App. LEXIS 3825

• Court: Court of Appeals for the Second Circuit
• Decided: November 13, 1911
• Docket: No. 79
• Status: Published

Opinion

PER CURIAM.

The specifications relied on are that bankrupts while insolvent transferred to the Mechanics’ & Metal Bank property and other securities, for the purpose of hindering, delaying, and defrauding creditors; also that the bankrupts knowingly and fraudulently failed to schedule a certain debt due them on open account by one Dittmar. As to the first ground we fully concur with the District Judge that, although the transaction may or may not have constituted a voidable preference, the evidence does not tend to show a transfer with intent to hinder, delay, or defraud creditors. We do not think it necessary to add anything to what is said in his opinion. As to the second ground there is no finding by the referee, either way. The District Judge says that it was not asserted by creditors that it had been sustained by evidence. Examination of the record shows that there was no misstatement in the schedule. Instructions by Dittmar to transfer the amount named from another account to his own were given on the day of the bankruptcy, but the change had not been made in the books before petition was filed. Bankrupts were advised by counsel not to make any change in their books after such filing; but when the schedules were prepared the proper changes were made in them and affidavits submitted to the receiver explaining the transaction. This assignment of error is without merit. The order is affirmed.