In re L. W. Day & Co.

Second Circuit

In re L. W. Day & Co.

178 F. 545, 101 C.C.A. 461, 1910 U.S. App. LEXIS 4533

Court of Appeals for the Second Circuit·Decided March 7, 1910·No. No. 232·Published·Cited by 7 cases

Opinion

PER CURIAM.

Besides the notes which he transferred, Wodiska had a claim against the bankrupt which was duly filed and allowed; so had one Mann, who, it is alleged, was an officer of the company; and so had the attorney.

We think the order of the District Judge vacating the appointment of a trustee by the referee was one which it was entirely within his discretion to make. As to so much of the order, however, as forbids an officer of the corporation, or its attorney, or Wodiska, from themselves voting on any allowed claims of their own, we are not inclined to assent to the proposition that they may thus summarily be deprived of the right to vote secured to them by section 56 of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3442]). No question of irregular or improper proxy is presented, as in the case relied on. Re McGill, 106 Fed. 57, 45 C. C. A. 218. But it seems unnecessary to revise the order. .A new election has been had, and their three votes on their own claims would not have affected the result. We are satisfied from the record that the claims which Wodiska turned over, without consideration therefor, to persons from whom he obtained proxies to vote for trustee, should have, been excluded, from voting, and concur with the District Judge in his disposition of them.

The order is affirmed.

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PER CURIAM.

Besides the notes which he transferred, Wodiska had a claim against the bankrupt which was duly filed and allowed; so had one Mann, who, it is alleged, was an officer of the company; and so had the attorney.

We think the order of the District Judge vacating the appointment of a trustee by the referee was one which it was entirely within his discretion to make. As to so much of the order, however, as forbids an officer of the corporation, or its attorney, or Wodiska, from themselves voting on any allowed claims of their own, we are not inclined to assent to the proposition that they may thus summarily be deprived of the right to vote secured to them by section 56 of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3442]). No question of irregular or improper proxy is presented, as in the case relied on. Re McGill, 106 Fed. 57, 45 C. C. A. 218. But it seems unnecessary to revise the order. .A new election has been had, and their three votes on their own claims would not have affected the result. We are satisfied from the record that the claims which Wodiska turned over, without consideration therefor, to persons from whom he obtained proxies to vote for trustee, should have, been excluded, from voting, and concur with the District Judge in his disposition of them.

The order is affirmed.

In re L. W. Day & Co., 178 F. 545, 101 C.C.A. 461, 1910 U.S. App. LEXIS 4533 (2d Cir. 1910).

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