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February 29, 1952

McGIRL et al.

The opinion of the court was delivered by: WEINFELD

This is a motion for summary judgment in an action commenced by a Chapter X trustee of Solar Manufacturing Corporation, Debtor, to recover the payment of $ 575,000 to the defendant upon the ground that such payment constituted an unlawful preference and is voidable by the trustee under Section 70 sub. e(1) of the Bankruptcy Act, 11 U.S.C.A. 110 sub. e(1).

The debtor is a New York corporation and also transacted business in New Jersey. The petition in reorganization was filed and approved in the District Court of New Jersey. The defendant is a national banking association, located in the State of New York.

The complaint alleges two claims to recover the payment of the $ 575,000, which was made by two checks, one for $ 400,000 drawn on a New Jersey bank, and the other for $ 175,000 drawn on a New York bank.

 The first claim, based upon Section 15 of the New York Stock Corporation Law, Consol. Laws, c. 59, alleges that the payment was made when the 'insolvency of the debtor was imminent' and that the defendant 'had notice and reasonable cause to believe that the insolvency of the debtor was imminent and that such payment would effect a preference to the defendant over other creditors of the same class.'

 The second claim charges a violation of Revised Statutes of New Jersey, 14:14-2, N.J.S.A., and alleges that the payment was a transfer made by the officers and directors of the debtor 'in contemplation of the insolvency of the debtor.'

 Under New York law, a transfer in payment of an antecedent indebtedness cannot be avoided unless the transferee had notice or reasonable cause to believe that the transfer would effect a preference, *fn1" whereas notice or reasonable cause is not an element of a voidable preference under the New Jersey statute. *fn2"

 The defendant, in moving for summary judgment, denies the material allegations of the complaint and supports its motion with affidavits contending that the First National Bank of Jersey City was substituted in place of the defendant as a creditor to the extent of $ 400,000 without any depletion of the assets of the debtor or any increase in its liability; that on the very day of the payment sought to be recovered from the defendant, the debtor procured $ 800,000 credit from other banks (including the $ 400,000 from the First National Bank); that the debtor had an estimated worth of $ 1,000,000; that Dun & Bradstreet had given it an Aal rating; that the debtor continued in business for seven months after the payment, during which time it reduced and renewed its bank credits with two other banks. It relies upon the same facts to prove that the payments were not made 'in contemplation of insolvency' but rather as an incident in the continuance of the debtor's business.

 Whatever potency these and other contentions of the defendant may have upon a trial, they are negatived by affidavits submitted by plaintiff in opposition to the motion. The affidavit of the former president of the debtor indicates activities on the part of a number of the defendant's executives and directors, commencing in the Summer and Fall of 1947, and continuing to the date of payment, which raise an issue as to knowledge on the part of the defendant as to the debtor's financial condition and the imminence of insolvency.

 Whether Smyth v. Kaufman, 2 Cir., 114 F.2d 40, or Grubb v. General Contract Purchase Corp., 2 Cir., 94 F.2d 70, rules, this case should not be determined on conflicting affidavits. The facts, 'to learn just what has taken place between the parties, with a view to ascertaining whether a preferential transfer of property to a creditor has resulted', *fn3" should be developed on trial by the testimony of participants in the transactions and the issues should not be resolved definitively on unsworn memoranda. This applies not only to the $ 400,000, the greater part of which was derived from the proceeds of the loan made by the First National Bank, and such conditions and restrictions, if any, in the granting of the loan, but also to the $ 175,000, which admittedly came out of the debtor's general funds; the debtor's financial condition; the imminence of insolvency; and knowledge of the defendant- in the event it is a relevant issue under applicable law. Since the case must be tried, the question whether the New York or New Jersey statute is applicable to either or both of the claims should also be decided after trial.

 The defendant further seeks summary judgment with respect to both claims upon the ground that the plaintiff as a Chapter X trustee may not maintain this action under Section 70 sub. e(1) of the Bankruptcy Act absent a finding that the debtor was adjudged a bankrupt. No such adjudication was made of Solar.

 Section 70, sub. e(1) provides: 'A transfer made or suffered or obligation incurred by a debtor adjudged a bankrupt under this Act which, under any Federal or State law applicable thereto, is fraudulent as against or voidable for any other reason by any creditor of the debtor, having a claim provable under this Act, shall be null and void as against the trustee of such debtor.'

 The defendant concedes that these powers of avoidance are also conferred upon a Chapter X trustee by Section 187 of the Bankruptcy Act, 11 U.S.C.A. § 587, but urges that a condition precedent to the exercise thereof is that the debtor shall have been 'adjudged a bankrupt' in a straight bankruptcy proceeding prior to the institution of the Chapter X proceeding. 11 U.S.C.A. § 701 et seq. In my opinion so literal and rigid a construction is not only destructive of the underlying objectives of a Chapter X proceeding, but misconceives those sections of the Bankruptcy Act which are designed to integrate the ordinary bankruptcy provisions into Chapter X. Further, this view confuses the word 'debtor,' used in Section 70, sub. e(1) in its ordinary and accepted meaning, with a corporate debtor, specifically defined in Chapter X.

 Section 102 of Chapter X. 11 U.S.C.A. § 502, declares that the provisions of Chapters I to VII, 11 U.S.C.A. § 1-112, inclusive shall, insofar as not in conflict or inconsistent with the provisions of Chapter X, apply (subject to certain specified exceptions) in proceedings under that chapter. Since Section 70, sub. e is contained in Chapter VII and is not one of the specifically excluded sections, it comes within the scope of Section 102. *fn4"

 Section 70, sub. e is an all-inclusive section of the present Act for the avoidance of preferential or fraudulent transfers and is a combination of provisions contained in former Sections 60, 67, and 70, sub. e. 11 U.S.C.A. §§ 96, 107, 110, sub. e. *fn5" 'Together with its companion provisions, Section 70, sub. e affords the trustee a complete choice of weapons in his effort to set aside ...

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