casebody">

In re SCHWARTZ.

(District Court, S. D. New York.

October 25, 1909.)

Bankruptcy (§ 228*) — Reference—Finding of Special Master.

Where the question to be determined was whether a bankrupt made a fraudulent mortgage to his brother, a finding by the special master should be given great weight, though the district judge from a perusal of the evidence might have come to a different conclusion.

[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. % 228.*]

In the matter of Barned Schwartz, bankrupt. On report of special master.

Report confirmed.

L. T. Fetzer, for bankrupt.

Myers & Goldsmith, for petitioning creditors.

HAND, District Judge.

This case must turn upon the existence of the mortgage to Schwartz by his brother, because I think it fairly proved, first, that the bankrupt made a fraudulent transfer when he withdrew money and gave it to his wife, and, second, that the assets are insufficient without the mortgage to cover the liabilities. I do not think there is any evidence that the bill of sale was ever delivered to Schwartz’s wife, and so I cannot exclude the value of the merchandise.

I have read substantially all the testimony, and, were I to judge from it alone, I should not hesitate to find that the mortgage did not exist on April 14th, for the testimony is exceedingly suspicious. However I do not feel at liberty to disregard the special master’s finding. It is quite possible that Schwartz’s testimony on the examination under section 21a may have been through misunderstanding. It is perfectly clear that such contradictions can be satisfactorily resolved only by the tribunal which sees the witness. Other explanations are possible than that of perjury, and, when a competent master has concluded that the true explanation is not perjury, a judge should not upset his finding simply upon the basis of the written words. They constitute but a small part of the evidence; the bearing of the witness, his appearance, his general intelligence, and deportment counting as much as the words he uses.

Nothing is more certain than that great weight should be given to the finding of the tribunal which had before it all this evidence in its entirety. It is true in this case that with some of the master’s findings I disagree, as, for example, on the value of the licenses, of the insurance policy, and of the jewelry; but that does not militate against the correctness of his finding as to’ this issue, for in all of those matters my difference from him does not turn upon the credibility of a witness. He has necessarily determined that Schwartz spoke truly, and, even though there must have been strong evidence in his appearance to meet the inconsistency of his statements, I cannot say that it was not forthcoming, because I was not there, and I cannot judge with my own senses. Without, therefore, refusing to give to his finding *768that weight to which it should be entitled in any orderly system of administering the law, I do not see how I can avoid confirming the report. •

Report confirmed, and petition dismissed, with costs.

Citation profile

How this case has been treated — in progress