U.S. Court of Appeals for the Second Circuit, 1917

In re Garrity

U.S. Court of Appeals for the Second Circuit · Decided December 11, 1917 · Hough

247 F. 310; 159 C.C.A. 404; 1917 U.S. App. LEXIS 1664

Counsel

William R. Murphy, of Brooklyn, N. Y., for appellant., Crim & Wemple, of New York City (Mitchell W. Alexander, of New York City, of counsel), for creditor.

Cases that cite this one

9 later published cases cite this decision.

In re Perlmutter (District Court, D. New Jersey 1919)
Kaganowitz v. Manufacturers Trust Co. (2d Cir. 1944)
In re Milne (District Court, D. New Jersey 1941)
Willoughby v. Jamison (8th Cir. 1939)
In re Bryson (District Court, N.D. Texas 1931)
Moore v. Silverstein (9th Cir. 1929)
Merritt v. Peters (9th Cir. 1928)
In re Slocum (2d Cir. 1927)
In re Gottlieb (2d Cir. 1919)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

HOUGH, Circuit Judge

(after stating the facts as above). That the purpose and motive of this bankruptcy was to prevent the furriers collecting their judgment is especially clear. There were no business debts to discharge that the debtor might proceed in making a livelihood. Her teacher’s salary would continue, bankrupt or not, and she would get it, except for the 10 per cent, now reachable by execution under the law of New York. Such an execution was in fact levied the day before petition filed.

[1, 2] That the burden of proving matters preventing discharge is on the objector, and that mere inadvertence and omissions from schedule of debatable items by ignorant persons will not be deemed within the false oath and concealment sections of this statute, we have often held (Re McCrea, 161 Fed. 246, 88 C. C. A. 282, 20 L. R. A. [N. S.] 246; Re Cohen, 206 Fed. 457, 124 C. C. A. 363; Re Braun, 239 Fed. 113, 152 C. C. A. 155); but objections grounded on section 29a of the act need not be proven beyond a reasonable doubt as upon criminal indictment (Re Leslie [D. C.] 119 Fed. 406; Re Delmour (D. C.] 161 Fed. 589; Re Doyle [D. C.] 199 Fed. 247). The rule is the same as in civil trials; a fair preponderance suffices.

[3] This bankrupt by her profession cannot plead ignorance. The intent to prepare for an assetless bankruptcy is reasonably inferable from her own testimony as to her bank account. She has herself testified to the fact of having her December salary due when she swore to her schedules, and she has not even claimed to believe that the ordinary delay in payment enabled her to keep what she had earned before petition.

*312The importance of everything is relative; $183 is not absolutely a large sum, but here it was by bankrupt’s own testimony the entire estate. Such an omission was not trivial, inadvertent, nor ignorant.

Furthermore both the referee (after personal examination) and the District Judge have found that there was a purpose to conceal. We do not differ with such successive considered findings of fact, except when very clearly satisfied of error.

Order affirmed, with costs.

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