Opinion
No. 19560.
December 3, 1930.
Chauncey H. Levy, of New York City, for receiver.
Cottin Joseph, of New York City, for judgment creditor.
In Bankruptcy. In the matter of Irving Fain, trading under the firm name and style of Fain's Famous Textile Co., alleged bankrupt. On motion by receivers to compel surrender of property.
Motion denied.
Ten days prior to the filing of the involuntary petition herein on October 30, 1930, an execution had been issued upon a judgment recovered in the Municipal Court of the city of New York, borough of Manhattan, Third district, in which Lamour Knitting Co., Inc., was plaintiff and "Fain-Famous Textiles, Inc.," was defendant.
Levy was made by a city marshal, prior to the filing of the bankruptcy petition, and this motion was made to compel the judgment creditor and the said marshal to surrender the property levied upon, to the receiver in bankruptcy of this individual alleged bankrupt, upon the theory that his property was levied upon, instead of that of the defendant named in that action.
Such summary disposition of an adverse claim to property, not in the possession or custody of the receiver, and which property is asserted not to have been that of the bankrupt, seems not to be contemplated by the law. A plenary suit by the trustee would afford the only satisfactory and legal method for determining the controversy.
Motion denied. Settle order on two days' notice.