Opinion · Court of Appeals for the Second Circuit

Hatch v. Morosco Holding Co.

5 F.2d 1015

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1925-03-02
Topic
general

PER CURIAM. The order appealed from is a plain violation of section 265 of the Judicial Code (Comp. St. § 1242), in that it contains an injunction staying proceedings in a state court in a matter which has no relation to bankruptcy and which does not interfere in any way with the custody, care, and distribution of the property in the hands of the court below under and by virtue of the bill. It is therefore directed that the order be reversed, *1016with costs. A direction will, however, be included in our mandate, and in the order to be entered thereupon, that should any judgment be entered in said action in the state court; such judgment shall not be taken to be a liquidation of any claim filed or capable of being filed under the judgment creditors’ bill herein, or as in any way affecting the right of the receiver to contest the claim so reduced to judgment de novo.

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Cited by
1 opinion
HATCH v. MOROSCO HOLDING COMPANY,5 F.2d 1015(2nd Cir. 1925)
Robert L. HATCH, Plaintiff Appellee, v. MOROSCO HOLDING COMPANY, Inc.,
Defendant Appellee, and Edward Margolies, Appellant.
No. 255.
Circuit Court of Appeals, Second Circuit.
March 2, 1925.
Appeal from the District Court of the United States for the Southern District of New York.

Appeal from order in equity entered in the District Court for the Southern District of New York.

See, also, 296 F. 516.
Nathan Burkan, of New York City (Isadore Shapiro, of New York City, of counsel), for appellant.

F. Wright Moxley, of New York City, for appellee.
Before HOUGH, MANTON, and HAND, Circuit Judges.
PER CURIAM.
The order appealed from is a plain violation of section 265 of the Judicial Code (Comp. St. § 1242), in that it contains an injunction staying proceedings in a state court in a matter which has no relation to bankruptcy and which does not interfere in any way with the custody, care, and distribution of the property in the hands of the court below under and by virtue of the bill. It is therefore directed that the order be reversed,Page 1016with costs. A direction will, however, be included in our mandate, and in the order to be entered thereupon, that should any judgment be entered in said action in the state court, such judgment shall not be taken to be a liquidation of any claim filed or capable of being filed under the judgment creditors' bill herein, or as in any way affecting the right of the receiver to contest the claim so reduced to judgment de novo. Nothing, however, in our mandate shall be taken to prevent the court below permitting liquidation of Margolies' claim by suit in the state court, should it prefer so to do.