Opinion
No. 314, Docket 20275.
July 9, 1946.
Appeal from the District Court of the United States for the Southern District of New York.
Creditor's suit by Joseph A. Phelan against the Middle States Oil Corporation and others, wherein Joseph P. Tumulty and Joseph Glass were appointed as receivers of the United Oil Producers Corporation and others, and wherein Sophie D. Cohen, individually and as executrix, and Meyer Kraushaar and another, as executors of the last will and testament of William W. Cohen, deceased, filed a motion for compulsory accounting by the receivers and a motion for authority to inspect the receivers' papers. From an order settling the accounts of the receivers and discharging them and denying the motion for authority to inspect papers in possession of receivers, Sophie D. Cohen individually and as executrix, and the executors appealed to the Circuit Court of Appeals. The Circuit Court of Appeals, 154 F.2d 978, reversed the order and remanded the cause to the District Court. From an order of the District Court entered on the mandate of the Circuit Court of Appeals, Sophie D. Cohen individually and the executors of the will of William W. Cohen, deceased, appeal, and move that the mandate of the Circuit Court of Appeals be recalled and modified or be construed in the manner they desire, and the appellees move to dismiss the appeal.
Order affirmed, and both motions denied.
Meyer Kraushaar and Kraushaar Kraushaar, all of New York City (David I. Kraushaar, of New York City, of counsel), for appellants.
Leslie Kirsch, of New York City, Joseph P. Tumulty, of Washington, D.C., and Joseph Glass, of New York City (Joseph Glass, of New York City, of counsel), for appellees.
Before SWAN, CLARK, and FRANK, Circuit Judges.
This is an appeal from the order entered on the mandate of this court in a prior appeal entitled Phelan v. Middle States Oil Corp., 2 Cir., 154 F.2d 978. In addition, the appellants have moved that our mandate be recalled and modified, or be construed in the manner they desire; while the appellees have moved to dismiss the appeal. Without reciting the terms of the order it will suffice to say that it fully conforms to our mandate. The opinion on the former appeal did not order a reference to a special master. Rule 53(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723(c) declares that a reference to a master is the exception, not the rule. Whether in a given case a reference should be ordered is a matter primarily within the discretion of the district judge. He has not as yet exercised his discretion and the order on appeal leaves him free to do so hereafter. Nor does the order, as the appellants assert, unduly restrict their investigation. It grants them inspection of "all books, papers, documents, balance sheets, appraisals and inventories in the hands of the Receivers of any of the companies heretofore or now in receivership in this cause." If it shall appear to the district court that examination of the books of the new company is essential to show values as of the time of the judicial sales, we cannot assume that such examination will be denied. The appellants' complaint on this score is premature. Both motions are denied and the order appealed from is affirmed.