In re Newmark , 249 F. 341 ( 1918 )

HOUGH, Circuit Judge

(after stating the facts as above). [1] Mrs. Newmark’s lease was created nearly two years before this bankruptcy. For all that this record shows, Newmark was solvent in 1914; and while we may be sure that Newmark & Davis, Incorporated, was not then prosperous, there is no evidence that the corporation was insolvent at the time. But let it be assumed that the gift of a three-year lease from the corporation to Mrs. Newmark was a fraud upon its creditors; or upon the corporation itself, it is also true the persons injured are not before us. The single question in this case is whether the bankrupt, when he filed petition, individually owned the lease, and consequently concealed and kept. from his individual creditors that piece of unscheduled property.

The position of objecting creditor would be much stronger if the wife had been the recipient of anything that eyer belonged to her husband; but Newmark never owned this apartment house, and, however dishonorable was his conduct in procuring such a gift from a concern that had- in effect mortgaged even tire rents of the building, the very absence of morals revealed by the admitted transaction renders it unlikely that Mrs. Newmark was a trustee for him. The ordinary cunning of dishonesty would suggest that the husband have nothing to do with what. (as she testified) his wife had asked for. It is not necessary for the bankrupt to insist that suspicion is not proof; we do not suspect him of owning it, nor even of wanting it, for all that he needed was to keep1 on good terms with his wife, so that she would permit him to live with her in, or on the proceeds of, the apartment she desired.

[2] 'Discharge is a statutory matter. The court, as well as the objecting creditors, is confined to the specifications of objection. Those specifications must be affirmatively proved, and the one before us contains nothing but the assertion that Newmark owns the lease. We think the proof is the other way, and that the case is even clearer than In re Dauchy, 130 Fed. 532, 65 C. C. A. 78, and In re Hammerstein, 189 Fed. 37, 110 C. C. A. 472, where we were compelled to grant discharges under circumstances not similar, but suggestive.

Order affirmed, without costs.