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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


Sec. 562 P. L. & R.
Buffalo, N. Y.
Permit No. 2639

VOL. 9-NO. 1

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
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


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.
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


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.
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,
Unilateral Action by An Employer
Held to Be Violation of Section
8 (1) of The Wagner Act
After a hearing in which the
STORES, took part, The National
Labor Relation Board, found that
a craft group of 30 employees out
of 4500 employees constituted in
(Continued on Page Two)

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