June 3, 1947
MERCHANTS BANK OF NEW YORK.
Before SWAN, AUGUSTUS N. HAND and FRANK, Circuit Judges.
FRANK, Circuit Judge.
The evidence amply shows that the debtor company was hopelessly insolvent on January 23, 1943, when the involuntary petition in bankruptcy was filed against it. Appellant, in its briefs, by using elaborate figures, purports to show that the debtor was solvent on December 7, 1942 and up to December 26, 1942. This argument proves too much. For defendant does not explain why, if its contention is sound, the debtor's condition changed so astonishingly in the succeeding month. Absent such an explanation, we are unable to regard the trial judge's findings as clearly erroneous with respect to the insolvency in December. We think the evidence sufficiently sustains the other findings. Defendant, citing Wingert v. Hagerstown Bank, 4 Cir., 41 F.2d 660, 662, argues that, in considering the debtor's solvency, the judge erroneously failed to take into consideration the solvency of the co-makers with debtor of certain notes. We cannot agree. This argument ignores the fact that here the co-makers were accommodation parties. We think that the trial judge reasonably exercised his discretion in refusing to reopen the case.
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