
    In re GREENBERG.
    (Circuit Court of Appeals, Second Circuit.
    December 17, 1909.)
    No. 213.
    Petition to Review Order of the District Court of the •United States for the Eastern District of New York.
    Ralph Nathan, for petitioner. Irving L. Ernst, for respondent.
    Before LACOMBE, COXE, and NOYES, Circuit Judges.
   PER CURIAM.

It seems to be conceded that on the record .before us there is no contradiction of the averment in the petitioner’s affidavit that the merchandise in question was, at the time of the hearing in the bankruptcy court, in the custody of the United States marshal in the district of North Carolina, pursuant to writ of seizure issued to an ancillary receiver herein. If the receiver'has the merchandise, it is difficult to understand upon what theory he can also demand the money that was paid for it. But, however this may be, we are clearly of the opinion that controversies such as this between the receiver and third parties should not be decided summarily on affidavits, but in a plenary suit. Order reversed.  