In re Applebaum In re Applebaum, 11 F.2d 685 (2nd Cir., 1926)

Copy Citation

11 F.2d 685 (1926)

In re APPLEBAUM. Appeal of STATE BANK.

No. 278.

Circuit Court of Appeals, Second Circuit.

April 5, 1926.

11 F.2d686

         Max Silverstein, of New York City (Archibald Palmer, of New York City, of counsel), for appellant.

        Yankauer, Davidson & Mann, of New York City (Leo Wechsler, of New York City, of counsel), for appellee.

        Before HOUGH, MANTON, and HAND, Circuit Judges.

        PER CURIAM.

        The second specification alone covers the omission to schedule the sister as a creditor; it is general, merely alleging that he failed to put into his schedules the name of all his creditors. It was certainly bad on exception, and perhaps bad anyway; but, as the point was apparently not raised, we proceed to the merits: Kate Samuels had lent at least $3, 000, apparently $4, 000 in all, to the bankrupt, and held some insurance policies as security. Just why he did not include her does not very satisfactorily appear. Whether he thought the collateral canceled the debt, whether he merely expected her not to press him, or whether he regarded her as not on a parity with his other creditors, we cannot tell. In Joseph v. Powell, 213 F. 627, 130 C. C. A. 291, we held that a financial statement was none the less false because it omitted creditors who the utterer did not think would press him. So here we must hold that the mere fact that a bankrupt thought that a creditor would not press him would not excuse his omission of the debt, if he really believed that a debt it was.

        However, we see no reason to upset the finding that this bankrupt did not know that she was a creditor when he omitted her. The bank must prove the appellee's belief upon a matter of law; any honest confusion on the question will therefore excuse him. The referee may have been mistaken, and supposed that it was enough if the bankrupt merely thought his sister, though a creditor, would not press him, or he may have found that he did not really think she was a creditor at all. The report does not say anything definite on the subject, but it does find the specifications not proved, and certainly the evidence is not so clear that we can say as matter of law that the finding was wrong. Had the bank been dissatisfied, it should have asked for a more definite finding.

        The other specification raises a question of law. The referee was wrong in supposing that the bank could not rely on the financial statement because it made an independent examination. A lender may rely on two sources of information at once. Moreover, we shall assume that the statement was false. The appellant relies on In re Bleyer, 215 F. 896, 132 C. C. A. 236 (C. C. A. 2) but that came up on exceptions to the specifications which expressly alleged that the bankrupt had obtained some part of the money lent to his corporation. That alone saved the specifications. The same is true of In re Dresser, 146 F. 383, 76 C. C. A. 655 (C. C. A. 2).

        If it is necessary under section 14b (3), (Comp. St. 9598), to show that the bankrupt got any of the property, the evidence is not sufficient. The corporation got it, and so far as appears he never withdrew any part of it, and, although he owned all the stock, there is no evidence that he ignored the corporate entity or treated the corporate till as his own. So the case presents the question whether the word "obtains, " in section 14, means that the bankrupt gets the money or property himself, or whether it is enough that he is the means of getting it for a third person. To put a bare instance: Suppose the bankrupt wishes to accommodate another person and indorses

11 F.2d687

        The English statute against false pretenses, in its original form, was interpreted as requiring the accused to get the property. Rex v. Garrett, 6 Cox C. C. 260; Jones v. U. S Fed. Cas. No. 7499; Willis v. People, 19 Hun, 84; People ex rel. Phelps v. General Sessions, 13 Hun, 396, 400; Bracey v. State, 64 Miss. 26, 8 So. 165. It was changed (24 and 25 Vict. c. 96, 89), and to-day either by statute or by decision the law is generally the other way (Commonwealth v. Harley, 7 Met. Mass. 462; Commonwealth v. Langley, 189 Mass. 89, 47 N.E. 511; Fisher v. State, 161 Ark. 586, 256 S.W. 858; People v. Woods, 59 Cal. App. 740, 212 P. 41; People v. Aronson, 173 A.D. 734, 156 N.Y. S. 396, affirmed 218 N.Y. 684, 113 N.E. 1062).

        In re Dunfee, 219 N.Y. 188, 114 N.E. 52, construing section 17 (2), (Comp. St. 9601), does not touch the question. Some of the cases are to be distinguished, because the accused was indicted as accessory, State v. Davis, 56 Kan. 54, 42 P. 348; Sandy v. State, 60 Ala. 58; People v. Moran, 43 A.D. 155, 59 N.Y. S. 312, affirmed 161 N.Y. 857, 57 N.E. 1120; Griggs v. U. S 158 F. 572, 85 C. C. A. 596 (C. C. A. 9). It may be that section 14b (3) was drawn following the statute of false pretenses, but the majority thinks that, if so, the original interpretation was the right one, and that in any case, when Congress chose the same words, it must be supposed to have accepted the original interpretation along with them.

        Order affirmed.