¶1Emmet L. Holbrook, of New York City, for appellant.
¶2John P. Gering, of Elmhurst, L. I., N. Y., for appellee.
¶3Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.
¶5On April IS, 1942, we dismissed the appeal in the above proceeding because of failure of the appellant to file and serve a proper record within the prescribed time. The bankrupt now moves to open his default and to permit him to proceed with the appeal. He was, however, not only dilatory in serving his notice of appeal, but much more so in making up his record and having it settled. We have examined the proposed record and the opinion of the referee and it is evident that the denial to the bankrupt of a discharge both in respect to the item of $4,693.27 and as to the item of $309 was due to the fact that the referee disbelieved the story of the bankrupt and believed the testimony of the opposing witnesses. Because the findings were against the bankrupt on conflicting testimony there would seem to be no prospect in the further prosecution of his appeal. It is evident that the emasculated record which he filed would have to be settled with consequent further delay. Under all the circumstances we do not feel justified in indulging him further.
¶6Accordingly the motion to open his default and reconsider the order of April 15 to dismiss the appeal is denied.