95 FEDERAL, REPORTER.
In re LEVY et al. (District Court, N. D. New York.
May 3, 1899.)
Under Bankruptcy Act 1898, § 5, providing that a partnership may be adjudged bankrupt "during the continuation of the partnership business, or after its dissolution and before the final settlement thereof," there is no final $ettlement of a firm's business so long as debts remain unpaid, although the assets of the partnership have been swept away by executions, and it has long since ceased to do l;msiness, and has been dissolved by the partners.
In Bankruptcy. This was a voluntary petition, filed by 'Moses Levy, asking for an adjudication of bankruptcy against himself, and also against the firm of Richman & Levy, of which he was a member. The other partner, Louis L.' Richman, filed an answer to the petition, objecting to the adjudication of the firm. The referee in bankruptcy to whom the case was referred reported as follows:
I find the facts to be as follows: Prior to December 12, 1877, the said Moses Levy and Louis L. Richman, then being residents of the state of Pennsylvania, were co-partners, composing the co-partnership firm of Richman & Levy, doing in the village of Foot of Plain, Bradford county, Pennsylvania. At tbe time, of the filing of the petition hereinpy the said Moses Levy, the said
IN RE LEVY.
co-partnership of Richman & Levy was dissolved, and the business thereof had ceased to be continued; but there had been, and has been, no final settlement thereof. At the time of and for the six months next preceding the filing of his petition herein, the said Moses Levy resided in the village of :Waverly, Tioga county, New York; and the said LoUis L. Richman then resided in the city of New York, in said state, having his place of business at 89 Bowery, in said city of New York. The said partnership of Richman & Levy, so doing business in the state of Pennsylvania, and being indebted to divers persons, judgments were recovered for said debts in the court of common pleas of Bradford county in the state of Pennsylvania, the same being Ii court of record, in favor of the different creditors hereinafter stated, and against said partnership of Richman & Levy, or against said Louis L. Richman and Moses Levy, as such co-partners, for the respective amounts stated: April 21, 1877, in favor of John Hunter or his wife against L. L. Richman and M. Levy, for $300, with interest from March, 1877, and $15.25 costs, on which was paid $34.02, March 30, 1878, and $40 on May 10, 1878. October 12, 1877, in favor of C. Brothers against Richman & Levy, L. I,. Richman, M. Levy, for $3,000 and interest from June 16, 1877, with $62.69 costs, on which there was paid as proceeds from a sale of property of the defendants upon execution, December 12, 1877, the sum of $2,791.18. October 17, 1877, in favor of C. S. Werner & Co. against Richman & Levy for $200 and interest from October 16, 1877, and $18.30 costs. October 17, 1877, in favor of C. S. Werner & Co. against Richman & Levy for $222 and interest from October 16, 1877, with $4.25 costs. October 27, 1877, in favor of John Hunter, 2d, against Richman & Levy, for $32 and interest from June 9, 1877, with $4.25 costs. February 25, 1878, in favor of Star Oil Co. against Richman & Levy for $127 and interest from February 25, 1878, with $27.67 costs. February 25, 1878, in favor of Cross & Beguelin against Richman & Levy for $868.23 and interest from December 3, 1877, with $17.80 costs. July 8, 1877, in favor of Rosendorf & Co. against Richman & Levy for $749.20 and interest from July 23, 1883, with costs $21.58. No part of said jUdgments has been paid, excepting as stated. And the said judgments, excepting so far as paid, as stated, are partnership debts of the said partnership of Richman & Levy, and fixed liabilities thereof evidenced by judgments absolutely owing at the time of the filing of said petition herein. Upon one or more of said judgments an execution was issued upon which all the property belonging to said partnership was taken, and the same sold, and the proceeds applied in payment upon said jUdgments, being the payments stated. By operation of such execution sale, tl1e said partnership was dissolved on or about December 12, 1877'. At least fifteen years before the filing of the petition herein, both said Moses Levy and fiaid Louis L. Richman departed from the state of Pennsylvania and ,became residents of the state of New York, within which state they have ever since continuously resided. Since the sale on execution of the property of 'Richman & Levy, said partnership firm has had no assets, and has been and is insolvent. Before the commencement of this proceeding the said Louis L. Richman refused to join with said Moses Levy in petitioning for an adjudication of said partnership as bankrupt; and there has been no allegation or proof on the question whether or not said Louis L. RIchman is insolvent, or has committed an act of bankruptcy. And I find and determine as conclusions of law that an order should be made adjudicating the said partnership of Richman & Levy, and the said petitioner Moses Levy, bankrupt, in accordance with the prayer of said petition. All of which is respectfully submitted. Roswell R. Moss, Referee in Bankruptcy.
Benjamin F. Levy, for petitioner. Frederic E. Perham, opposed. COXE, District Judge. The object of the petitioner is to secure a discharge from debts contracted by the firm of Richman & Levy, of which he was a member. The petition is resisted by Louis L. Richman, a former member of the firm. By general order 8, Rich·
maenlG9uld, have proved that the is not insolvent or he could.have:availed himself of any. defense which a debtor proceeded . is., eatltled to by the provisions. 'of the act.. The illspl'v;em;y of the as .is the existence of a large n,umber of partnership deQts, upon se"\(eral of which judgmentshave been recovered. The principal opposition to the prayer of'the 'petition is based upon the that the firrn'was dissolved in 1877 aI/.d that all but qneof the debts are barred by the statute of limitations of this. state;thoughtbe .Jl1dgments a,re.not barred in Pennsylvania, where the business of the firm was transacted. It is thought that under thl:!peculiar phraseology of section 5 of the bailk.!'uptcy'aJ.t, the petition can be sustained, there having been no settlemellt," as therein provided... 1heentire has been carefully examined by the referee and his report and opinion are so full and clear that further discussion is unnecessary. The question presented is an interesting oIle,'buttherecan heno doubt that the petitioner, assuPling that he conforws.to the of the act, is entitled to a discharge from thesepal'tnersbip debts, and it is, at least, doubtflllif this can be accomplished' unless the adjudication is made as prayed for. On the other );land, it isilOt easy tosee how Richman can be injured by course, especia11y if the debts are not IlOW provable. The report of the referee should be confirmed and there should be an adjudication' and the usual .order of refer.. . ence.
In rc (District Court, ,N.
New York;. June ;1.2, 1899.)
BANKRUPTCy-POWERS OF REFEREES-AMENDMENT OFJ>ETITION. It is within the jurisdiction and the discretion of :1 referee in
bankruptcy to order amendments to be made in the petition and schedule of a volun c tary bankrupt referred to him, in particalars as to which he finds them defective or insufficient, and to refuse to caUs first meeting of creditors until such amendments be made. '. ..
In Bankruptcy. On review of an order of the referee in bankruptcy requiring the amendment of the petition and schedule of the bankrupt. . The order was as follows:
"An adjudication and order of reference having been certified herein to the referee, upon examination of the petition and schedUles, I find them insufficient in the following particulars: 1. The verifications thereof being made before a notary public are defective in the statement of the venue, such statement not showing the verifications to have been made within the jurisdiction of the notary public talting the same. 2. The verifications of the schedules recite that the petitioner was 'duly sworn (or affirmed).' The form of verification should state definitely how the. verification was .roade. 3. The three verifications are defective and unavailing because made before a notary public who is one of th(l attorneys for tl1e bankrupt. 4. A numbet of the creditors are recited in the schedules as residing in large cities. as Boston and New York; no address being giVen by street and .number or such designation as