The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
The bankrupts seek to review an order made by one of the referees in bankruptcy, which provides:
"Ordered, that John P. Hines and Michael F. Hines, and each of them, individually and as co-partners, doing business under the firm name of Hines Brothers and the said Hines Brothers, the bankrupts herein, be and they hereby are ordered and directed to execute and deliver to William S. Brower, the trustee in bankruptcy herein, or his successor or successors in office, at the office of said William S. Brower as trustee, at the Hewlett-Woodmere National Bank Building, Woodmere, in the County of Nassau, or to James G. Moore, the attorney for said Trustee in bankruptcy, at his office No. 72 Wall Street, Borough of Manhattan, City of New York, before noon on the 5th day after the service of a certified copy of this order upon said bankrupts, or either or any of them, an order directed to the Department of Taxation and Finance, State Tax Commission, Albany, New York, requesting and requiring the said Tax Commission to deliver to said William S. Brower, as such trustee, certified copies of all income tax returns and amended returns filed with said Tax Commission by the said bankrupts and each of them, reporting the income of said bankruptcs for the years 1927, 1928, 1929, 1930 and 1931, which said order so to be executed and delivered by the said bankrupts and each of them, shall be substantially in the following form, to wit:
"'To the Department of Tax and Finance, State Tax Commission, Albany, New York. You are hereby authorized and directed to deliver to William S. Brower, Trustee in bankruptcy of the undersigned, or upon his order, pursuant to section 384 of the Tax Law of the State of New York, certified copies of all income tax returns and amended returns filed by the undersigned, reporting income of the undersigned for the years 1927, 1928, 1929, 1930 and 1931, and said William S. Brower, as such trustee, is authorized by the undersigned to receive the same.'
and which said order when so executed by said bankrupts shall be acknowledged by them and each of them before a Notary Public of the State of New York."
The referee in his report states:
"From the examination of the minutes under section 21a of the United States Bankruptcy Act it appears that in 1927 the bankrupts conveyed all of their real property and part of their personal property to Hinmar Realty Corporation and Aldorf Realty Corporation, both of which corporations were organized at the time of the transfers, and of which corporations the bankrupts then became and ever since have been executive officers and directors.
"No books, memoranda or papers in any way relating to the business of the bankrupts at the time of the transfer have been produced, and the bankrupts have testified that there are no such books, papers or memoranda now in existence.
"It is contended by the moving party that the income tax returns of the bankrupts for the years 1927 and 1928, filed with the Commission of Internal Revenue at Washington have been destroyed, pursuant to authority vested in the Commissioners by law, but that the State Tax Commission of the State of New York has in its office the original and amended returns of the bankrupts for the years 1927 and 1928 and subsequent years. Under the Federal statute and regulations a trustee of a bankrupt may obtain copies of income tax reports of a bankrupt, but in this instance said reports filed with the Commissioner of Internal Revenue have been destroyed."
It appears that the income tax returns of the bankrupts for the year 1927 and subsequent years are on file with the New York state tax commission. A demand was made upon the state tax commission for certified copies of such returns, fees of the state tax commission were tendered, and the returns were refused. The trustee thereupon brought the motion, which resulted in the order now on review.
The people of the state of New York for the department of taxation and finance were not made parties to this proceeding. However, the Attorney General of the state of New York, at the request of the court, has filed a memorandum amicus curiae.
Section 384 of the Tax Law of the state of New York, chapter 62 of the Laws of 1909, as added to and amended (Consol. Laws, c. 60), contains the following provisions:
"§ 384. Secrecy Required of Official; Penalty for Violation. 1. Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the tax commission, any tax commissioner, agent, clerk, or other officer or employee to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this article. The officers charged with the custody of such reports and returns shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding in any court, except on behalf of the tax commission in an action or proceeding under the provisions of this chapter to which it is a party, or on behalf of any party to any action or proceeding under the provisions of this article when the reports of facts shown thereby are directly involved in such action or proceeding, in either of which events the court may require the production of, and may admit in evidence, so much of said reports or of the facts shown thereby, as are pertinent to the action or proceeding and no more. Nothing herein shall be construed to prohibit the delivery to a taxpayer or his duly authorized representative of a certified copy of any return or report filed in connection with his tax nor to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the attorney-general or other legal representatives of the state of the report or return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted in accordance with the provisions of sections three hundred and eighty and three hundred and eighty-one of this chapter. Reports and returns shall be preserved for three years and thereafter until the tax commission orders them to be destroyed.
"2. Any offense against subdivision one of this section shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year, or both, at the discretion of the court, and if the offender be an officer or employee of the state he shall be dismissed from office and be incapable of ...