The opinion of the court was delivered by: CAFFEY
This is a petition by one creditor of the bankrupts above named to reopen the estate and have any funds remaining therein distributed among the creditors who may be entitled thereto.
The bankrupts were adjudged such in 1922 and the proceeding sent to a referee of this Court. Thereafter a trustee and, later, his successor were appointed. In 1928 a first and final dividend was declared, payable to the approved creditors, and checks, in payment of these dividends, were sent the creditors entitled to them. Over two hundred of the checks were never cashed and the trustee deposited with the Clerk of this Court the sums of $ 33.71 on October 5, 1928, and $ 4,014.45 on October 27, 1930. In the succeeding years thirteen creditors presented to the court their checks aggregating $ 804.33, and these were paid. On January 30, 1934, $ 33.71 was transferred to the Treasury and on March 28, 1936, the balance of the moneys remaining in the Court, amounting to $ 3,210.12, was transferred to the Treasury. Five more checks were then presented and $ 572.72 was paid out thereon. There is now a balance of $ 2,671.11 in the Treasury to the credit of this bankruptcy estate. The estate was closed in 1931.
In 1944 the People of the State of New York started proceedings in the Supreme Court, New York County, to declare these funds escheated to the People. An ex parte order was obtained from a Justice of the Supreme Court providing for notice by publication to the owners and claimants of this fund. The only answer filed in response to the publication was by the Clerk of this Court, who raised no material issues. The time to answer in the State proceedings has run and the petitioners have not sought to answer. However, no judgment has been entered therein, because of the pendency of this motion.
The People of the State of New York oppose the pending motion to reopen the estate and distribute the funds remaining on hand. They assign three grounds of opposition. These are as follows:
(1) The moneys on deposit in the Treasury of the United States have escheated to and are now the property of the People of the State of New York.
(2) Since the moneys are now and since 1936 have been on deposit in the Treasury of the United States, this Court has no power to effect the distribution sought by the petitioners. It can only direct payment to those creditors who had originally failed to cash their dividend checks or those claiming under or through the same creditors.
(3) Even if the power be lodged in this Court now to effect the distribution sought by the petitioner, this Court should, in the exercise of its discretion, deny the relief prayed for by the petitioner.
The first ground is clearly untenable. The People of the State of New York have no title to the abandoned moneys until there has been an adjudication of escheat by the State Court, Klein v. Brodbeck, D.C., E.D. Pa., 15 F.Supp. 473, 474 second column; 28 U.S.C.A. §§ 851 and 852; McKinney's Consolidated Laws, book 2-1/2, New York Abandoned Property Law, secs. 1202 and 1210. See United States v. Klein, 303 U.S. 276, 281, 282, 58 S. Ct. 536, 82 L. Ed. 840.
There has been no such judgment entered on the moneys involved. The ex parte order obtained in the State Supreme Court was not a judgment of escheat. The underlined portion of the order submitted in the affidavit by the Assistant Attorney General merely repeats the statutory presumption of abandonment. Abandoned Property Law, sec. 1201. This presumption is rebuttable by competent evidence in accordance with the terms of that section. Therefore, the funds have not yet escheated to the People of the State of New York. The petitioner may be a claimant ...