Opinion
No. 71, Docket 27517.
Argued October 25, 1962.
Decided October 30, 1962.
Borris M. Komar, New York City, for appellant.
Samuel W. Sherman, New York City, (Edward Gettinger and Peter Gettinger, New York City, on the brief) for bankrupt-appellee.
Samuel Newfield, New York City, for James B. Kilsheimer III as trustee in bankruptcy of H.S. Dorf Co., Inc.
Before LUMBARD, Chief Judge, and SWAN and MOORE, Circuit Judges.
We affirm Judge Sugarman's order of March 21, 1962, which denied the application of Beol, Inc. for a review of the referee in bankruptcy's order of January 12, 1962, granting reargument of an application to stay Beol, Inc. from a collection of a state court judgment, and setting reargument for January 16, 1962. Judge Sugarman held that the referee's order was "an interlocutory order lacking the necessary finality that is a condition to any review of such an order." The attorney for the bankrupt and the attorney for the trustee in bankruptcy, who had been recently appointed, were in the process of attempting to develop before the referee additional evidence which was relevant to whether or not Beol, Inc. should be stayed from the collection of a state court judgment. The attorney for Beol, Inc. knew of the hearing set for January 16, 1962, and that he would be required as a witness at that hearing. Instead of appearing before the referee, the attorney for Beol, Inc. petitioned the district court to review the action of the referee. When Judge Sugarman quite properly denied the petition to review, Beol appealed to this court instead of going forward before the referee. The order of the district court was clearly right as the appellant had by its own actions and the actions of its attorney, precluded a sufficient consideration of the matters then pending before the referee. In such a case there was nothing which required a review of the referee's order.