The opinion of the court was delivered by: RYAN
The trustee moved for an order directing the bankrupt to account for and turn over merchandise inventory of hosiery, underwear and other wearing apparel of the value of $ 10,830.71, and cash or proceeds of collection of accounts receivable amounting to $ 4,122.16.
The referee, upon completion of the evidence presented by the trustee and without putting the bankrupt to proof, dismissed the trustee's petition, and made findings of fact, among which were the following:
'5. That the Trustee has failed to prove that the said Harry Milgrom, the Respondent herein, had in his possession, or under his control, any of the personal property consisting of hosiery, underwear and other wearing apparel of the alleged value of $ 10,684.91, or any part thereof, on the 2nd day of February, 1950, the date of the Trustee's petition, or that he had in his possession or under his control such personal property on the 12th day of June, 1950, the date of hearing.
'7. That the Trustee, David N. Aberman, has failed to sustain the allegations of his petition in that he has failed to prove that the said Harry Milgrom, the Respondent herein, had in his possession, or under his control, any of the cash or the proceeds of the collections of accounts receivable of the alleged value of $ 4,122.16, or any part thereof, on the 2nd day of February, 1950, the date of the Trustee's petition, or that he had in his possession or under his control such cash or proceeds or any part thereof, of the collections of accounts receivable on the 12th day of June, 1950, the date of the hearing.'
The trustee has now filed a petition to review in which he particularly challenges these findings- '5' and '7'- and the law which the referee applied to the evidence in so finding.
The referee, dismissing the petition, stated on the record (S.M. pp. 53, 54):
'There is absolutely no proof that on February 3, 1950, when this respondent was served with these papers that he had any of these articles or merchandise and there is no proof that on June 12, 1950, a year and a half later, that he has the merchandise.
'Now, there is no longer any presumption of continued possession and under the decision in the Maggio case, Maggio v. Zeity, 333 U.S. 56, 68 S. Ct. 401, 92 L. Ed. 476. I don't see how you sustain the burden of proof. It is incumbent upon you to prove your case before the respondent must move-
'Mr. Naphtali: May I say this, that I have read the Maggio case-
'The Referee: There is no use arguing with me about it. The Supreme Court has wiped out the presumption of continued possession which used to be the rule in this district for many years. There is no longer presumption of possession, I warned you when you started to bring this proceeding that you were going to be up against that proposition, and you persisted in bringing it.
In the consideration of this petition the following dates are important:
April 13, 1949- involuntary petition in ...