The opinion of the court was delivered by: MOTLEY
Memorandum Opinion on Petition to Review
Petitioner, Kamerman and Kamerman, seeks review of an order of the Hon. Edward J. Ryan, Referee in Bankruptcy, dated December 14, 1966. The order in question granted the Trustee's motion for reargument of a motion made by Petitioner and previously granted by the Referee. Upon reargument, the Referee reversed his prior decision in favor of Petitioner and denied Petitioner's motion.
The reargued motion was to dismiss the Trustee's application objecting to a claim by Petitioner against the bankrupt. Ira Haupt & Co., and seeking to recover from Petitioner a preferential payment of $20,700, plus interest. Petitioner's motion to dismiss was originally granted on the ground that the two year period of time during which the Trustee could assert his claim for recovery of a voidable preference prescribed by Section 11e of the Bankruptcy Act (11 U.S.C. § 29e) had run against the claim here.
The facts relevant to this review are as follows:
1) On March 23, 1964, an involuntary petition in bankruptcy was filed against Ira Haupt & Co. following its suspension from further trading on the New York Stock Exchange.
2) Prior to the filing of the foregoing involuntary petition in bankruptcy, Petitioner received payment from a liquidator of Haupt's business aggregating $20,700.
3) On March 30, 1964, a petition under Chapter XI, Section 321 of the Bankruptcy Act (11 U.S.C. § 721) was filed, purportedly on behalf of Haupt in the pending bankruptcy proceeding.
4) Thereafter, a motion was made to dismiss the Chapter XI petition and on June 10, 1964, the Referee granted the motion on the ground, inter alia, that the Chapter XI petition was not the voluntary act of Haupt.
5) By order and decree dated June 26, 1964, Haupt was adjudicated a bankrupt.
6) Petitioner filed a proof of debt against the bankrupt which has never been allowed or disallowed.
7) On October 6, 1964, the Trustee of the Estate of the Bankrupt was appointed, has since been qualified, and is now acting as such Trustee.
8) On May 20, 1966, the Trustee instituted proceedings objecting to Petitioner's claim and seeking disallowance of the claim, in accordance with Section 57g of the Bankruptcy Act (11 U.S.C. § 93g) unless Petitioner surrendered to the Trustee the sum of $20,700 with interest, said monies representing voidable preferences under Section 60a and b of the Bankruptcy Act (11 U.S.C. § 96a and b).
9) Petitioner filed an answer dated June 28, 1966, to the Trustee's objection and application alleging that the Trustee's application was time barred by the provisions of Sections 11e and 302 of the Bankruptcy Act (11 U.S.C. §§ 29e and 702).
10) On the same day on which Petitioner's answer was filed, Petitioner also filed its motion to dismiss the Trustee's application upon the ground that it failed to state a claim upon which relief could be granted in that it appeared that the application was barred by the provisions of Sections 11e and 302 of the Bankruptcy Act since the claim was not made within ...