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9 Erie Cnty. B. Bull. 1 (1946)

handle is hein.baecl/ericoubarb0009 and id is 1 raw text is: Erie County Bar ULLET N OF1 Sec. 562 P. L. & R. U. S. POSTAGE PAID Buffalo, N. Y. Permit No. 2639 VOL. 9-NO. 1 Bankruptcy Fraudulent Conveyance of Corporate Assets The creditor of a corporation secured a judgment upon which execution was returned unsatis- fied. It developed that the deb- tor's assets were transferred in a transaction which was void under Section 15 of the Stock Corpora- tion Law and also on common law grounds as in fraud of creditors. One of the questions raised was whether under the circumstances the judgment creditor was entitled to a lien on the assets to the full extent of his judgment and to satisfaction of the judgment therefrom, or to a sum which he would have received had the prop- erty improperly transferred been converted to money and applied to the payment of the corporate debts pro rata. The Court decided that Plaintiff was entitled to such a lien and full satisfaction of its judgment therefrom. Brown Pack- ing Co. v. Lewis (Supreme Court, Orange County) 58 N.Y.S. 2d 44t. Bankrupt's Refusal to Answer Questions The refusal by a bankrupt to answer material questions asked by the trustee in the course of the examination of the former was held not a ground for denying a discharge unless the form and merits of a question on which the right to a discharge may subse- quently depend are approved by the Court, once reluctance to an- swer is asserted by the bankrupt, the Court stating that the bank- rupt need not decide the issue of materiality at his peril. Re Kolb (CCA. Second Cir.) 151 F. 2d 605. After Discharge Denied, Bankrupt Cannot Petition For Arrangement In an ordinary bankruptcy pro- ceeding, a discharge was denied. Thereafter the bankrupt filed a petition for an arrangement under Chapter XI of the Bankruptcy Act. In construing the provisions of the Act, it was held that dis- missal of the petition for an ar- I BAR ASSOCIATION OF ERIE COUNTY rangement was required because of such prior denial of a discharge. I. & I. Holding Corporation et al v. Greenberg (C.C.A. Second Cir.) 151 F. 2d 570. Failure to Apply For Discharge Tantamount to Denial Thereof A bankrupt cannot obtain a dis- charge from the debts scheduled in a prior proceeding notwith- standing there has been no formal denial of a discharge in the first proceeding but a failure to obtain one through failing to make appli- cation therefor. Re Buchanan (District Court, W.D. Virginia) 62 Fed. Supp. 964. Discharge Obtained Through Concealment Voidable A bankrupt obtained a dis- charge in the course of a bank- ruptcy proceeding. Within six years in a second proceeding, a discharge was denied because of the prior discharge. In a third proceeding instituted over six years subsequent to the filing of the petition in the first proceeding, but less than six years after the second petition was filed, the Court's attention not having been called to the denial of the dis- charge in the second proceeding, the Court granted a discharge. It was held that this discharge was voidable. Re Finkelstein (District Court, E.D. New York) 62 Fed. Supp. 1015. Divorce Testimony of Correspondent in Contested Divorce Action Need Not Be Corroborated The alleged correspondent, a self-confessed murderer, in sup- port of defendant's counterclaim for divorce, testified to acts of intimacy with the plaintiff. The latter denied commission of such acts. The trial court declined to submit the issue of adultery to the jury on the theory that the testi- mony was not corroborated. The Appellate Division reversed hold- ing that there is no requirement for corroboration, and that the issue should have been submitted to the said: FEBRUARY, 1946 jury. The Court further The rule that divorces will not be granted by default solely upon the uncorrobo- rated testimony of detectives and prostitutes is not strictly a rule of evidence, but merely a rule for the guidance of ju- dicial conscience in uncontest- ed cases. It is not followed as a matter of law in litigated cases where a jury is present to pass upon the issues of fact under proper instructions. (Citing cases). Simons v. Simons, A.D. Third Dept. No- vember 14, 1945. Injunctions Threatened Act by Public Official Generally, a public officer can not justify a trespass against a person's property by invoking the command of an unconstitutional statute, and under such circum- stances, the tort becomes the officer's individual responsibility, and the government- is not held to have sufficient interest in the con- troversy to be considered an in- dispensable party. Therefore, an action for an injunction and a declaratory judgment was dis- missed since the essential allega- tions of the complaint and the record failed to make out a threatened trespass. (Mine Safety Appliances Co. v. Forrestal, 66 S. CT. 219, decided December 10, 1945.) Labor Unilateral Action by An Employer Held to Be Violation of Section 8 (1) of The Wagner Act After a hearing in which the employer MAY DEPARTMENT STORES, took part, The National Labor Relation Board, found that a craft group of 30 employees out of 4500 employees constituted in LABOR (Continued on Page Two)

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