In re Riorden
District Court, S.D. New York
This was a proceeding under general order No. 34, instituted by the assignee to re-examine and expunge the proof of debt of H. IÍ. Thurber & Co., on the ground that they, as creditors of the bankrupt, had received a preference, which disabled them from proving their debt. The case was briefly this : That on the 5th of November, 1873, John Riorden was adjudicated bankrupt under a petition filed on the 13th day of September, 1873, against him.
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This was a proceeding under general order No. 34, instituted by the assignee to re-examine and expunge the proof of debt of H. IÍ. Thurber & Co., on the ground that they, as creditors of the bankrupt, had received a preference, which disabled them from proving their debt. The case was briefly this : That on the 5th of November, 1873, John Riorden was adjudicated bankrupt under a petition filed on the 13th day of September, 1873, against him. Thomas D. Whitney was ■appointed assignee. On May 21, 1873, a little less than four months prior to the filing of the petition, Riorden was indebted to…
1Opinion of the CourtBlatchford, J.
I think the preference was surrendered, within the meaning of the statute, it having been surrendered before there was a recovery.
That surrender was accepted and the assignee discontinued the suit voluntarily, and thereby is estopped from alleging that there was no surrender. The assignee might have refused to accept the surrender or discontinue the suit except on condition that he should have the same benefit of objecting to the proof of debt as if the money had been obtained as the result of a recovery.
But he imposed no such condition. If he had imposed it and it had been refused he might…
2Cited by1 opinion
- Streeter v. Jefferson County BankSupreme Court of the United States · 1893