UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
April 2, 1943
DRINCUP VENDORS, INC.,
FOUNTAIN MACHINES, INC.
Appeal from the District Court of the United States for the Southern District of New York.
Before SWAN, CHASE, and CLARK, Circuit Judges.
On July 31, 1942 the district court entered an order approving the petition of Fountain Machines, Inc., as properly filed under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., and staying all suits against the debtor. Thereafter Drincup Vendors, Inc., moved that the general stay be lifted to permit it to prosecute an action previously commenced in a state court against the debtor and one Hollinger. This is an appeal from a denial of that motion. Summons in the state court action had been served on the debtor only and the complaint had not been filed or served. From the moving affidavit it appears that the action "is predicated upon breach of two written contracts as well as tort." In Chapter X proceedings the district judge has discretion to stay all suits against the debtor. 11 U.S.C.A. § 516(4). We can upset the stay only if discretion was abused. The appellant has not established such abuse in the case at bar. The order is affirmed.
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