Opinion
Proceeding in the matter of Richard Sullivan, bankrupt. On motion of Conlew, Incorporated, creditor, to settle the record on appeal to the Circuit Court of Appeals.
Motion denied.
Newman & Bisco, of New York City (Nathan Waxman, of New York City, of counsel), for Conlew, Inc., creditor-appellant.
Robert H. Spelman, of New York City, for bankrupt.
CLANCY, District Judge.
This motion must be denied. Under Rule 75(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the District Court has the power to settle the record on appeal only when a difference arises between the parties with respect to what occurred in the District Court, so that the record may conform to the truth. Here the entire file was before me and was considered on the motion, the decision of which this creditor seeks to appeal. I, therefore, lack the power to exclude from the record any of the papers which bankrupt thinks should properly be in it. See Westmoreland Asbestos Co., Inc., v. Johns-Manville Corporation, D.C.S.D.N.Y., 1 F.R.D. 249. If such papers are in fact unnecessary, Rule 75(e) of the Federal Rules of Civil Procedure contemplates remedial action by the Circuit Court of Appeals.
Submit order.