In re McCarthy

S.D. New York

In re McCarthy

170 F. 859, 1909 U.S. Dist. LEXIS 295

DecidedJune 7, 1909

StatusPublished

This text of 170 F. 859 (In re McCarthy) is published on Counsel Stack Legal Research, covering District Court, S.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 McCarthy, 170 F. 859, 1909 U.S. Dist. LEXIS 295 (S.D.N.Y. 1909).

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Opinion

HAND, District Judge

(after stating the facts as above). There is no express rule in this district by which defects in the form of specifications are waived by the bankrupt’s failure to except or demur to them. Still, it is proper in most instances that the special master should disregard all defects in form to which the bankrupt has not excepted. If the specifications in the case at bar had stated anything which, by any construction whatever, would have come within the statute, I should have held that a failure to except waived any failure of form; but after reading them with a great deal of care, and construing them in the most benign sense possible, I cannot really uiuler-[860]*860stand which of the statutory grounds, if any, the creditor means to assert. The nearest approach to an allegation of fact within any of the grounds set forth in section 14 is in subdivision 1 of the specifications. This may perhaps have meant that the bankrupt had committed an offense punishable by imprisonment, the offense in question being perjury upon his examination. The trouble is that this ground of objection is not set forth. The only statement is that the bankrupt’s testimony is inconsistent and contradictory, and that is not only consonant with the innocence of the bankrupt, but is a characteristic of most testimony of any length whatever. I do not think, therefore, that even by the most liberal interpretation the first specification can be held to charge any offense under the act.

Therefore there was nothing before the learned referee, and the specifications were, in fact, a mere nullity. I suppose there must-be a degree of meaningless verbiage which the bankrupt can afford to disregard altogether, and I do not think that by failing to except he must be ready before the referee to rebut any proof which the creditor may be then ready to adduce under the statute. The specifications in this case seem to me to be meaningless verbiage, and I think they have no weight in any stage of the proceeding.

■ The discharge is granted, with costs against the objecting creditor as found.

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HAND, District Judge

(after stating the facts as above). There is no express rule in this district by which defects in the form of specifications are waived by the bankrupt’s failure to except or demur to them. Still, it is proper in most instances that the special master should disregard all defects in form to which the bankrupt has not excepted. If the specifications in the case at bar had stated anything which, by any construction whatever, would have come within the statute, I should have held that a failure to except waived any failure of form; but after reading them with a great deal of care, and construing them in the most benign sense possible, I cannot really uiuler-[860]*860stand which of the statutory grounds, if any, the creditor means to assert. The nearest approach to an allegation of fact within any of the grounds set forth in section 14 is in subdivision 1 of the specifications. This may perhaps have meant that the bankrupt had committed an offense punishable by imprisonment, the offense in question being perjury upon his examination. The trouble is that this ground of objection is not set forth. The only statement is that the bankrupt’s testimony is inconsistent and contradictory, and that is not only consonant with the innocence of the bankrupt, but is a characteristic of most testimony of any length whatever. I do not think, therefore, that even by the most liberal interpretation the first specification can be held to charge any offense under the act.

Therefore there was nothing before the learned referee, and the specifications were, in fact, a mere nullity. I suppose there must-be a degree of meaningless verbiage which the bankrupt can afford to disregard altogether, and I do not think that by failing to except he must be ready before the referee to rebut any proof which the creditor may be then ready to adduce under the statute. The specifications in this case seem to me to be meaningless verbiage, and I think they have no weight in any stage of the proceeding.

■ The discharge is granted, with costs against the objecting creditor as found.

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Bluebook (online)

170 F. 859, 1909 U.S. Dist. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mccarthy-nysd-1909.