In Re United Cigar Stores Co. of America

21 F. Supp. 869, 1937 U.S. Dist. LEXIS 1290
CourtDistrict Court, S.D. New York
DecidedDecember 30, 1937
StatusPublished
Cited by12 cases

This text of 21 F. Supp. 869 (In Re United Cigar Stores Co. of America) 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 United Cigar Stores Co. of America, 21 F. Supp. 869, 1937 U.S. Dist. LEXIS 1290 (S.D.N.Y. 1937).

Opinion

COXE, District Judge.

These are applications for final allowances in the bankruptcy and reorganization proceedings of United Cigar Stores Company of America, which will hereafter be referred to as the “debtor.” The two proceedings have extended over a period of about five years, and a number of the applications are for services and expenses in both proceedings. The total amount requested is $1,219,065.23, of which $1,181,-989.97 is for services, and $37,075.26 for expenses.

The debtor filed a voluntary bankruptcy petition on August 29, 1932, and the Irving Trust Company was then appointed receiver. The adjudication took place on the same day, and a short time thereafter the Trust Company became the sole trustee. On June 9, 1934, while its affairs were still being administered in bankruptcy, the debtor filed a petition under section 77B, Bankr.Act, 11 U. S.C.A. § 207 and note, and the Trust Company was appointed temporary trustee. *874 This appointment was made permanent on July-17, 1934, and thereafter the Trust Company continued in charge of the business until July 16, 1937, when the assets were turned over to the new company provided for in the plan of reorganization:

The debtor carried on many of its operations through wholly owned subsidiaries, the principal ones being United' Stores Realty Corporation, Cigar Stores Realty Holdings, Inc., and Whelan Drug Company, Inc. There were separate bankruptcy proceedings in this district for these three subsidiaries, and in each case the Trust Company acted both as receiver and trustee. The proceedings relating to the United Stores Realty. Corporation resulted in a liquidation, and the case has been closed. In the case of the Cigar Stores Realty Holdings, Inc., the proceedings were consolidated with the reorganization proceedings of the debtor and'the remaining assets were included in the prpperty turned over to the new company. The Whelan Drug Company, Inc., changed its name to Retail Chemists Corporation just prior to bankruptcy, and its assets were acquired at bankruptcy sale by the trustee of the debtor. These assets also have been transferred to the new company, and the proceeding has been closed.

Prior to bankruptcy the debtor operated a'chain of nearly one thousand retail cigar stores; it had in addition sales agency arrangements with more than eleven hundred independently owned stores; and through the Whelan Company it also operated a chain of over one hundred and eighty drug stores. These stores were all scattered in various parts of the country, and the yearly business ran into large figures.

. The company and its subsidiaries owned outright a considerable amount of real estate. It also held under lease more than a thousand other properties. These properties were located in various states and in the District of Columbia.. Some were used wholly for the debtor’s retail business; others were only partly so used and the unoccupied portion sublet; and still others were held in' anticipation of a rise in -realty values. Most of the real estate was owned or controlled through United Stores Realty Corporation and Cigar Stores Holdings, Inc.

In July, 1933, a plan of reorganization was proposed by representatives of the then provable claims, amounting to over $10,000,-000. This plan completely ignored the landlords, whose defaulted lease claims were not at the time provable. Manhattan Properties v. Irving Trust Co., 291 U.S. 320, 54 S.Ct. 385, 78 L.Ed. 824. It also failed to recognize to any appreciable extent the stockholders of the company. The landlords protested, and opposed any action leading to the consummation of the plan. In the meantime, three cash dividends totaling 50 per cent., and aggregating over $4,000,000, were declared by the referee; and in June, 1934, section 77B became law, making more than seven and a half million additional claims provable, against the estate. This combination of circumstances made the plan thoroughly impracticable, and in September, 1934, it was abandoned.

The reorganization plan which has now been confirmed has been the result of protracted negotiations covering a considerable period of time. An earlier plan, which had the support of most of the then existing interests, became impossible after the decision of the Supreme Court on the qualified release claims. Schwartz v. Irving Trust Co., 299 U.S. 456, 57 S.Ct. 303, 81 L.Ed. 348. This decision very materially, increased the allowable claims, against the estate, and a recasting of the plan became necessary in order to provide for the enlarged indebtedness. The final plan was formally proposed on April 1*5, 1937, and confirmed on June 10, 1937. The properties were turned over to the new company on July 16, 1937.

In the Paramount Case, In re Paramount-Publix Corp., D.C., 12 F.Supp. 823, some of the general principles governing allowances in bankruptcy and 77B proceedings were stated. I consider these general principles applicable to this case. In some respects they have already been approved by the Circuit Court of Appeals for this circuit, in Re Paramount Publix Corp., Palmer v. Paramount Pictures, 85 F.2d 588; and I do not understand that they are seriously questioned by any of the present applicants:

It is urged with respect to some of the applications that there is authority to make allowances to attorneys for creditors or committees for services during the regular bankruptcy proceedings. It is well settled, however, that such services cannot be compensated for in- bankruptcy. In Re Realty Associates Securities Corp., 2 Cir., 69 F.2d 41, certiorari denied Bondholders’ Committee v. Realty: Associates Securities. *875 Corp., 292 U.S. 628, 54 S.Ct. 631, 78 L.Ed. 1482; In re Allied Owners Corp., 2 Cir., 79 F.2d 187; In re Paramount Publix Corp., Zirn v. Paramount Pictures, 2 Cir., 85 F.2d 593. Neither can they be compensated for in the 77B proceedings unless they were “in connection with the proceeding and the plan.” Section 77B, subd. (c) (9), of the act, 11 U.S.C.A. § 207(c) (9). The word “proceeding,” as used in this subdivision, obviously refers to the 77B proceeding; it furnishes no warrant for any allowance to such attorneys for services in the bankruptcy proceedings unless they were “in connection with — the plan.” This, I think, necessarily follows from the fact that services “in connection with — the plan” may be recognized even though they antedate the “proceeding.” In re Paramount-Publix Corp., D.C., 12 F.Supp. 823; In re Paramount Publix Corp., Kuhn, Loeb & Co. v. Paramount Publix Corp., 2 Cir., 83 F.2d 406.

It is also insisted that attorneys for creditors or committees may be compensated for services in aid of the trustee and its attorneys during the 77B proceedings.

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21 F. Supp. 869, 1937 U.S. Dist. LEXIS 1290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-united-cigar-stores-co-of-america-nysd-1937.