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IN RE CAPITAL FOUNDRY CORP.

DISTRICT COURT, E.D. NEW YORK


February 14, 1946

In re CAPITAL FOUNDRY CORPORATION

The opinion of the court was delivered by: GALSTON

GALSTON, District Judge.

This motion by the National Foundry Company of New York, Inc., a creditor of the debtor, for an order requiring the trustees to turn over to the creditor the sum of $2,913.76 as a trust fund, cannot be determined on the affidavits which have been submitted. This is particularly true in the light of the affidavit of Fred W. Calef, filed after the argument of the motion and in reply to the affidavit of Thomas H. Bagnall, submitted on behalf of the trustees. It is not clear from a reading of these affidavits why, if there was an open account between the debtor and the National Foundry Company in addition to the termination claim arising out of the contract between the parties, it became necessary for the debtor to procure the counter-signature of the New York Chemical Warfare Procurement District as to open account payments, unless indeed the check was drawn on a special account containing funds provided by the Government or the Chemical Warfare Procurement District. The conflict in the affidavits of Calef and Bagnall in itself would make it impossible to find the facts from the affidavits. In addition to that, however, there should be complete explanation afforded through the testimony of witnesses and the cross-examination of those witnesses in respect to matters adverted to in the affidavits and necessarily involved in the motion, for example, the alleged agreement between the Chemical and the National in respect to a release of a claim of $10,000 by the National against the debtor for breach of contract, and the withholding of the funds by the Chemical pending the return by the National of termination inventory articles.

Accordingly the matter will be referred to the master for a finding of facts and conclusions of law.

 Settle order.

19460214

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