
    In re FELSON.
    (District Court, N. D. New York.
    August 19, 1903.)
    No. 1,255.
    1. Bankruptcy — Order on Bankrupt to Turn Over Property — Findings to Justify.
    To justify an order directing a bankrupt to turn over money or property to his trustee, it must be found that he has such money or property belonging to his estate in his possession or under his control, which he has concealed and withheld from his trustee.
    In Bankruptcy.
    This is a proceeding in the nature of an appeal from an order made by John C. Tulloch, referee in bankruptcy, directing the bankrupt, Arthur M. Felson, to pay over to the trustee of his estate in bankruptcy, duly appointed, the sum of $6,ooo.
    Hastings & Gleason, for the trustee.
    Rosenthal & Brown, for bankrupt.
    Abbott & Dolan, for certain creditors.
   RAY, District Judge.

On the 24th day of June, 1903, the referee in bankruptcy made an order on the return of an order to show cause before him why the bankrupt should not pay over to H. Walter Dee, his trustee in bankruptcy, goods, wares, and merchandise of the value of $20,000, or the proceeds thereof in money, which order, after reciting the adjournments and certain proceedings without finding or stating any facts whatever in relation to there being any money or property in the hands of the bankrupt, or in relation to his having concealed or disposed of any money or property since he filed his petition in bankruptcy, directs as follows: “Ordered that Arthur M. Felson, the above-named bankrupt, pay to H. Walter Dee, Esq., trustee of the above-named bankrupt, within five days from the service of a copy of this' order upon the said Felson, the sum of six thousand dollars ($6000.00).” This order is dated June 24, 1903, and signed by the referee. The referee made on the same day a memoranda of facts found by him, wherein and whereby he finds that July 21, 1902, the bankrupt had in his possession property and assets, consisting of cash, the sum of..........................................$ 5>00° 00

House worth....................................... 1,400 00

Stock and fixtures in store worth...................... 5>4°° 00

That after the 21st day of July, 1902, and between that date and the date when he was adjudged a bankrupt, December 29, 1902, he purchased new goods, and the same were delivered to him, of the value of............ 23,000 00

That the profits on sales of goods amounted to.......... 1,150 00

Making a total of................................$35>95° 9°

The referee further finds that the expense account of the store and personal outlay of the bankrupt between July 21, 1902, and December 29, 1902, was................ $ 1,000 00

That the bankrupt purchased real estate in New York City aggregating............ 21,700 00

That he paid the creditors during the said time ................................. 1,500 00

Stock and fixtures on hand, worth.......... 3,000 00

Making....................................... $27,200 00

And leaving a balance unaccounted for................ $ 8,750 00

The referee then makes an arbitrary allowance of $2,750 for possible minor payments and expenses, and says:

“Giving to the bankrupt the benefit of every doubt, and making full allowance for any minor payments made by the bankrupt or for a less amount of goods received since the 21st day of July, 1902, than the sum of $23,000, which facts may not be fairly disclosed by the evidence, I find that the bankrupt has concealed or misappropriated property belonging to his estate in the amount of $6,000, as set forth in said order.”

The referee does not find or state when the petition in bankruptcy was filed, nor does he find or state that the bankrupt did not meet with other losses, or that there was not a depreciation in the value of this property, house, stock, fixtures, and stock purchased between July 21, 1902, and December 6, 1902, nor does he find or state whether or not the bankrupt purchased the goods referred to, and bought after July 21, 1902, on credit or for cash. The referee does not find that the bankrupt has any property aside from money in his possession or under his control hidden or concealed, nor does he find that the bankrupt has any money-in his possession or under his control belonging to his estate in bankruptcy. In order to justify an order that the bankrupt pay over money or deliver property, it is not necessary that the evidence show clearly and distinctly that the bankrupt has the money or the property in his possession in such shape, or in such a location, that witnesses have seen it, and may therefore testify that the bankrupt actually has the money or property in his possession at some particular place. It is sufficient if the evidence discloses the fact that at a certain date the bankrupt had the property or the money in his possession, and has not lost the same by fire or other casualty, for which he is not responsible, or has not expended the same in gambling or in some other manner. The referee does not find or state that this bankrupt has since the filing of his petition concealed property belonging to his estate in bankruptcy, or placed same in other hands, nor does he state that he finds that the bankrupt has in his possession or under his control, or within his reach, the sum of $6,000, or any other sum.

See Boyd v. Glucklich, 8 Am. Bankr. R. 393, 116 Fed. 131, 53 C. C. A. 451, where it is held:

“A court of bankruptcy cannot lawfully order a bankrupt to deliver to bis trustee money or property be bas not got in bis possession or under bis control, and imprison bim if be does not comply with tbe order, as that would be imprisonment for debt, and tbe order would not be relieved of'that illegal and odious quality by calling it ‘imprisonment for contempt.’ * * * A court of bankruptcy cannot sentence a bankrupt to imprisonment for debt, any more than any other court of tbe United States can do that thing; and what it cannot do directly it cannot do by indirection, under another name. It cannot, therefore, lawfully order a bankrupt to deliver to tbe trustee money or property be bas not got in his possession or under his control, and imprison him if be does not comply with tbe order. Plainly, that would be imprisonment for debt, and tbe order is not relieved of that illegal and odious quality by calling it ‘imprisonment for contempt.’ Tbe court that makes such an order is in contempt of tbe law and constitution, and not the bankrupt, in contempt of tbe court.” ...

In short, the findings of the-referee are not sufficiently definite and explicit to justify the order, and the order must be reversed and set aside, with directions to the referee to make new findings of fact on all these subjects, and state whether or not the evidence shows, in his opinion, that the bankrupt has or had at the time the proceedings were taken, or at any time between the filing of the petition and the adjudication in bankruptcy, the sum of $6,000, or any other sum, in money or property, in his possession or under his control, or within his reach, belonging to his estate in bankruptcy, which he has concealed and withheld from his trustee in bankruptcy. If the bankrupt has misappropriated property belonging to his estate in bankruptcy, the referee should state when the same was misappropriated, and, so far as possible, how.

An order will be entered accordingly, remitting the proceedings to the referee for further proceedings pursuant and in accordance with these directions.  