Opinion
No. 74.
November 6, 1939.
Proceeding in the matter of John Biro, bankrupt, wherein Henriette Bethell, creditor, filed specifications of objection to the bankrupt's discharge. From an order overruling the bankrupt's objections to the specifications, the bankrupt appeals.
Order modified.
Samuel O. Kuflik, of New York City, for bankrupt-appellant.
T. John McKee, of New York City (Archibald Palmer, of New York City, of counsel), for creditor-appellee.
Before SWAN, CHASE, and PATTERSON, Circuit Judges.
A creditor filed specifications of objection to the bankrupt's discharge to which exceptions were taken by the bankrupt that were in part sustained with leave to amend. There was no appeal from that order but instead the objecting creditor amended the specifications. The bankrupt thereupon excepted to the amended specifications. His exception to the first specification was sustained and the creditor did not appeal. His exception to the remaining specifications, numbered, second, third and fourth, were all overruled and the bankrupt has appealed.
The contention that the amended specifications were bad because verified only by the creditor's attorney upon information and belief cannot be sustained. Brooks v. Collins et al., 5 Cir., 29 F.2d 732; In re Perelstine, D.C., 15 F.2d 64. See also, New General Order No. 38, 11 U.S.C.A. following section 53.
The second amended specification alleges "that the said bankrupt has destroyed, concealed or failed to keep books of accounts or records from which his financial condition and/or business transactions with respect to the sum of One Hundred Thousand ($100,000) Dollars, received from said Henriette Bethell, might be ascertained or discovered."
This specification is certainly good in the part alleging a failure of the bankrupt to keep books of account from which his financial condition could be ascertained. In re Feuer, 2 Cir., 4 F.2d 892. As to destruction or concealment it is not enough to rely upon the words of the statute, 11 U.S.C.A. § 32, sub. c, but there should be a statement sufficiently explicit to enable the bankrupt to know what it is claimed that he has destroyed or concealed. In re Feuer, supra. This specification, however, does satisfy that requirement in that it is confined to books of account with respect to a definite sum of money received from the objecting creditor.
The third specification alleged the making of a false oath as to which the original specifications contained nothing and so was not a permissible amendment. Northeastern Real Estate S. Corp. v. Goldstein, 2 Cir., 91 F.2d 942.
The fourth specification alleged that the bankrupt had "committed an offense punishable by imprisonment under the Bankruptcy Act, in that he knowingly and fraudulently embezzled the said sum of One Hundred Thousand ($100,000) Dollars". This is but a general allegation that the bankrupt embezzled the sum named and is not sufficient. While embezzlement is, indeed, an offense punishable by imprisonment it is not such an offense under the Bankruptcy Act unless the embezzled property came into the charge of the accused "as trustee, receiver, custodian, marshal, or other officer of the court". 11 U.S.C.A. § 52, sub. a. Had the sort of embezzlement which is an offense under the Bankruptcy Act been alleged in the specification it would still have been subject to exception as new matter under the rule of Northeastern Real Estate S. Corp. v. Goldstein, supra.
The only specification which should have been held good is the second.
Order modified accordingly.