DISTRICT COURT, E.D. NEW YORK
October 13, 1942
In re BROWN (two cases)
The opinion of the court was delivered by: BYERS
BYERS, District Judge.
Motion to dismiss petition to review identical orders of the referee in bankruptcy, dated August 26, 1942, made in these proceedings, that the bankrupts were the owners of a leasehold and the buildings erected upon the leased property, known as 615 Cross Bay Boulevard; and that their son, Harold J. Brown, is their nominee and holds ostensible legal title for their benefit; and that the trustee in bankruptcy of each bankrupt is the owner and entitled to immediate possession of the said property; and that the bankrupts execute and deliver to him all necessary legal instruments to vest title in the said trustee.
The bankrupts have during this proceeding been in possession of the said property, which in law passed to the trustee as of the filing of the petition; the son, Harold J. Brown, was not in possession at the filing of the petition, or thereafter, and jurisdiction pertained to the bankruptcy court to grant the relief herein sought by the trustee.
It is unnecessary to repeat what is said in the report of Referee Frey dated August 13, 1942, and the orders signed by his successor as referee are in accordance with the decision of the former.
A reading of the testimony and examination of the exhibits fail to develop any reason for present disagreement with the said decision.
It is impossible to attribute any value to the testimony of the bankrupts that there was an actual transfer of the lease and the business to the son on November 15, 1935, in light of Exhibit 3, an application for a loan of $300 made to the National Bank of Far Rockaway, dated nearly eleven months thereafter, on September 30, 1936, signed by both bankrupts, in which they describe themselves as owners of Brown's Restaurant, 615 Cross Bay Boulevard, and owners of the same house and restaurant, and state that title is in the name of Ernest F. and Cornelia M. Brown.
Whatever maneuvers the Browns and their then 22 year old son conducted to create an appearance to the contrary, in order to circumvent an existing judgment, the fact is that the property in question was theirs and so continued until the filing of the petition. It now belongs to their trustee in bankruptcy.
Motion to dismiss petition to review granted.
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