The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is an action brought by a Trustee in Bankruptcy to set aside the transfer of the entire business of Starkman's Ladies' Ready To Wear, Inc., alleged to have been made by the bankrupt, the defendant Samuel Starkman, to his son the defendant Joseph Starkman, also known as Joseph George Starkman about the month of November 1936, for the purpose of defrauding his creditors.
From 1914 to 1928 the bankrupt, the defendant Samuel Starkman, conducted a retail store at which ladies' coats and suits and dresses were sold, and ladies' coats and suits were manufactured, at premises No. 126 Manhattan Ave., in the Borough of Brooklyn, City of New York.
In 1928 an involuntary proceeding in bankruptcy was instituted against the defendant Samuel Starkman, who was adjudicated a bankrupt and the business cleared out in the bankruptcy.
Clearly none of the stock in trade of the bankrupt passed from him to the defendant Joseph Starkman.
The defendant Joseph Starkman testified, and such testimony was uncontradicted, that thereafter he set up the business anew. It was a small business and a large sum was not required to set it up anew. He secured the financial assistance of members of the family, incorporated the business, and to secure them, gave them stock in the said corporation.
It is true, of course, that there are contradictions in the testimony, but none of those contradictions show that the business was handed to the defendant Joseph Starkman by his father, the bankrupt, the defendant Samuel Starkman, nor does the evidence in any sense contradict the testimony of the defendant Joseph Starkman, that he set up the business anew.
The criticism of the defendant Joseph Starkman because of his youthfulness finds no responsive criticism on my part, on the contrary, the youthfulness of the defendant Joseph Starkman impresses me with his ability, as the ability he displayed and the energy he must have put into it, to carry, as he did, the whole family, Mother, Father, Sister and Brother, shows that youthfulness was no bar.
I do not believe that the defendant Joseph Starkman had much money when he set up the business anew, but what was needed he obtained from relatives, and thereafter he put into the business every dollar that he could.
By pursuing a policy the reverse of that which his father had pursued, the said defendant Joseph Starkman paid all of the debts of the corporation and paid all of the stockholders, and dissolved the corporation and took over the business individually.
It is this action which plaintiff contends is the transfer of which complaint is made herein.
The burden of proving his case by a fair preponderance of the evidence rests upon the plaintiff, and it seemx to me that he has failed to successfully bear that burden.
Not only is there no evidence that the bankrupt, the defendant Samuel Starkman, had any interest in the business in November 1936, when plaintiff contends the transfer of which complaint is made herein was made, but all of the evidence shows plainly that the defendant Joseph Starkman was the owner.
The defendant Joseph Starkman had a personal checking account for the receipts and expenses of the business in his own name, at ...