In re Horowitz

Second Circuit

In re Horowitz

250 F. 106, 162 C.C.A. 278, 1918 U.S. App. LEXIS 1862

CourtCourt of Appeals for the Second Circuit

DecidedMarch 13, 1918

DocketNo. 184

StatusPublished

Cited by7 cases

This text of 250 F. 106 (In re Horowitz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Horowitz, 250 F. 106, 162 C.C.A. 278, 1918 U.S. App. LEXIS 1862 (2d Cir. 1918).

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Opinion

PER CURIAM.

The bankrupt was presenting Ms application for discharge before the referee. There had been great delay in the matter, and finally a stipulation was entered on the record that the matter should proceed on a day named, and unless the trustee as objector was ready, and went forward on that day, the referee should report in favor of discharge. On the day appointed, the trustee’s attorney was not present, and the referee gave report recommending discharge as on default.

The matter coming before the District Judge for confirmation, he relieved against the stipulation, opened the default on terms as to costs and expenses, and ordered a further opportunity for hearing. The order to that effect is the subject of this review.

[1] Nothing but matters, both interlocutory and of discretion, are here exhibited. Doubtless for error of law there is power in this court to revise even interlocutory proceedings in bankruptcy; but such resort to us is not favored when the matter can be raised by appeal or petition from the order or decree finally disposing of the matter.

[2] Again, whether to open the default and relieve against the stipulation was discretionary with the District Court. The delays had been considerable; the expenses imposed as a condition of further opportunity of proceeding were also’ considerable; it is, of course, impossible to say that there was abuse of discretion, i. e., unreasonable departure from considered precedents, and settled judicial custom, which is error of law. That the referee was quite right, in that he was bound by the stipulation of record, is not to the point. This petition questions the action of the court.

Petition dismissed. No costs.

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PER CURIAM.

The bankrupt was presenting Ms application for discharge before the referee. There had been great delay in the matter, and finally a stipulation was entered on the record that the matter should proceed on a day named, and unless the trustee as objector was ready, and went forward on that day, the referee should report in favor of discharge. On the day appointed, the trustee’s attorney was not present, and the referee gave report recommending discharge as on default.

The matter coming before the District Judge for confirmation, he relieved against the stipulation, opened the default on terms as to costs and expenses, and ordered a further opportunity for hearing. The order to that effect is the subject of this review.

[1] Nothing but matters, both interlocutory and of discretion, are here exhibited. Doubtless for error of law there is power in this court to revise even interlocutory proceedings in bankruptcy; but such resort to us is not favored when the matter can be raised by appeal or petition from the order or decree finally disposing of the matter.

[2] Again, whether to open the default and relieve against the stipulation was discretionary with the District Court. The delays had been considerable; the expenses imposed as a condition of further opportunity of proceeding were also’ considerable; it is, of course, impossible to say that there was abuse of discretion, i. e., unreasonable departure from considered precedents, and settled judicial custom, which is error of law. That the referee was quite right, in that he was bound by the stipulation of record, is not to the point. This petition questions the action of the court.

Petition dismissed. No costs.

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250 F. 106, 162 C.C.A. 278, 1918 U.S. App. LEXIS 1862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-horowitz-ca2-1918.

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