Opinion
No. 50931.
January 7, 1932.
Beekman, Bogue Clark, of New York City (Walter T. Margetts, Jr., of New York City, of counsel), for Irving Trust Co.
J. Zachary Stein, of New York City, for bankrupt.
In Bankruptcy. In the matter of M. Felix Company, Inc., bankrupt. On motion of the Irving Trust Company, receiver, for an order requiring the bankrupt to pay a certain sum to receiver.
Petition dismissed.
The receiver has moved for an order requiring the bankrupt to pay to it the sum of $190.18. It appears that the bankrupt offered a composition to its creditors, and that one of the terms of the offer was to pay the receiver's commissions and disbursements. The composition was confirmed. At the time the estimated disbursements amounted to $416. This amount was paid to the receiver out of the composition account, and the entire fund has been distributed. The receiver has since discovered that its disbursements came to $240.18 more than its estimate. The bankrupt has paid it $50 in addition, and the remaining deficit of $190.18 is the subject of this application.
In my opinion, the bankruptcy court has no jurisdiction to compel the bankrupt to pay this excess sum several months after confirmation and distribution of the composition fund. The fault was not that of the bankrupt; it deposited the full amount required of it as a condition to confirmation. The error was that of the receiver. It underestimated its disbursements. Under the conditions, no relief can be given by this court. In re Everick Art Corporation (C.C.A.) 39 F.2d 765, is quite different; there the bankrupt had not deposited the proper amount, though it represented in its petition that it had done so. The petition will therefore be dismissed.