Frank v. Drinc-O-Matic

Full title: FRANK et al. v. DRINC-O-MATIC, Inc., et al

Court: Circuit Court of Appeals, Second Circuit

Date published: Jun 11, 1943

136 F.2d 906 (2d Cir. 1943)

Opinion

No. 289.

June 11, 1943.

Appeal from the District Court of the United States for the Southern District of New York.

Reorganization proceedings instituted under Chapter 10 of the Bankruptcy Law, 11 U.S.C.A. § 501 et seq., wherein Hyman Frank and others, trustees, sought to sell certain of the debtor's machinery over the objection of Drinc-O-Matic, Incorporated, and others. From an order of the District Court directing the sale of the machinery, the objectors appeal.

Order affirmed.

Hamilton McInnes and Vahan H Kalenderian, both of New York City, for appellants.

Maurice Rubinger and Underhill Rubinger, all of New York City (Robert Jacobs, of New York City, of counsel), for trustees-appellees.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

PER CURIAM.

This is an appeal from an order in bankruptcy, directing the sale for $9500 of nineteen automatic vending machines belonging to the debtor, which were in the possession of their manufacturer, who claimed a lien upon them in the sum of $4,754.79. It is not necessary to state in detail the evidence which justified the sale in the minds of the special master and the district judge who confirmed his report. Notice of the application was given to all known creditors, and the situation of the debtor was such as might well make it desirable to release the machines from the vendor's claim even if its validity was questionable, which there is no reason to suspect. The trustee had no funds with which to redeem the machines, and after six months no plan of reorganization had been proposed. Possibly, though not certainly, the sale will force on a liquidation; in any event that is not a controlling consideration. The petition having been approved, the court had power to sell any property of the debtor, "upon such terms and conditions as the judge may approve." § 116(3) of the Bankruptcy Act, 11 U.S.C.A. § 516(3). To succeed the appellants must persuade us to substitute our discretion for that of the district court, and that under familiar principles we should not, and will not do.

Order affirmed.