Petition for Writ of Certiorari — Benedict v. Ratner

~fIiLeD

MAY <9 1922

pS LANSBUR

CLERK

Supreme Court of the United States

OcToser TrRM, 192%.

WALLACE BENEDICT, as Receiver in Bankruptcy of

the Hub Carpet Company,

Petitioner,

against

AARON RATNER,

Respondent.

———————

—_————

BRIEF IN OPPOSIFION TO PETITION

FOR WRIT OF CERTIORARI.

OS

Louis S. Posnmr,

Counsel for Respondent,

115 Broadway,

Borough of Manhattan,

New York City.

INDEX OF POINTS.

I.

Ostensible ownership arising from physical pos-

session is the basis of the rule which obtains in

some states, including New York, that a reserved

right of disposal in a mortgage avoids the pledge

of tangible property.

The rules which distinguish between tangible

and intangible personal property run markedly

through the Common Law and Statutes of Eng-

land and America; and neither by reason nor

authority can the language of the cases cited by

petitioner, all of which deal with tangible prop-

erty, be held to apply to the other. p. 5

II.

The decisions of Federal and State Courts sus-

tain the validity of the instrument under review.

p. 13

III.

The taking possession of the assigned accounts

prior to the filing of the petition in bankruptcy

perfected the lien thereon of the assignee, and

the rights of the subsequently appointed Receiver

and Trustee became subject thereto.

p. 17

IV.

The good faith of the transaction is not open to

question. p. 20

ii

¥.

No question of public interest is involved; deal-

ings had with mercantile houses are always with

knowledge that available bills and accounts re-

ceivable may be used to procure credit or capital.

p. 23

CONCLUSION

The law is settled in respondent’s favor and

the petition therefore should be denied.

p. 25

INDEX OF CASES.

PAGE

Ackerman v. True, 175 N. Y. 353............ 22

Bacon v. Bonham, 27'N. J. Eq. 212.......... 7

Bailey v. Baker Ice Machine Co., 239 U. S., at

a ee a a ere 19

Barnes v. Alexander, 282 U. S. 117.......... 17

Boise v. Talcott, 212 Fed. Rep. 268........... 17

no es Os Oe 7

Chapman v. Hunt, 254 Fed. Rep. 768,

13, 16, 19, 22

Etherbridge v. Sperry, 139 U. S. at pp. 277-278 23

First National Bank v. Pennsylvania Trust

Co., 124 Fed. 968, 66 C. ©. A. 100........ 21

Greey v. Dockendorff, 231 U. S. 513,

13, 17, 18, 19, 22

Gregory v. Morris, 96 U. S. 619............. 19

Griswold v. Sheldon, 4 N. Y. 581............ 9

Haskins v. Kelly, 24 N. Y. super. ct. 170...... 7

Hauselt v. Harrison, 105 U. S. 401

iii

PAGE

Kilbourne v. Fay, 29 Ohio St. 264............ 7

Kribbs v. Alford, 120 N. Y. 524............ 17

in re Leslie-Judge, 272 Fed. Rep. 886........ 8

Marsh v. Woodbury, 1 Metc. 436............ 7

Martindale v. Booth, 3 Bainwall & Adol 498... 11

Re Michigan Furniture Co., 249 Fed. 974.... 7

McCaffey v. Woodin, 65 N. Y. 463........ 17, 19

National Bank of Deposits v. Rogers, 166 N.

ME Gad soak boa kankxe rude ad Kuk 16, 17

National Hudson Bank vy. Chaskin, 28 App.

TN is $n DUS pads eeu ek 6 ol eee bows 7

Niles v. Mathusa, 162 N. Y. 546............. 7

Parshall v. Eggert, 54 N. Y. 18.............. 15

Randall v. Cook, 17 Wend. 53.....,......... 11

Robinson v. Elliott, 22 Wall. 513...8, 9, 10, 12

Ryall v. Rowles, 1 Vesey Senior DB GEE. ss 6

Sexton v. Kessler, 225 U. S. 90. .7, 13, 14, 19, 22

Sexton v, Kessler, 172 Fed. Rep. 535... .13, 20, 21

Stackhouse v. Holden, 66 App. Div. 423,

13, 14, 21

State Trust Co. v. Casino Co., 13 App. Div.

MR teak) dos bana yhe yeubcine tik os kc ot lk 7

Twyne’s Case, Coke Part i eee 10

Union Trust v. Bulkeley, 150 Fed. Rep. 510,

17, 19

In re Volence, 197 Fed. WO Foc isc van ke 7

Wilds v. Board of Education, 227 N. Y. p. 217. 19

Williams v. Ingersoll, 89 N. Y. 508........... 22

Wiser v. Lawler, 189 U.S. 260............... 22

Wood v. Lawry, 17 Wend. 492............... 12

Wood v. U. 8. Fidelity (D. C.), 143 Fed. 424. . 20

Young v. Upson, 115 Fed. | rae 19

Supreme Court of the Anited States

WALLACE BENEDICT, as Receiver in

Bankruptcy of the Hub Carpet

Company,

Petitioner, | O¢tober

° Term,

against 1921.

AARON RATNER,

Respondent.

BRIEF IN OPPOSITION TO PETI-

TION FOR WRIT OF CERTIORA I.

The decision sought to be reviewed was ren-

dered by the United States District Court for the

Southern District of New York, Judge Learned

Hand writing the opinion, and unanimously af-

firmed by the Circuit Court of Appeals, with opin-

ion, Hough, Manton and Mayer, JJ., sitting.

Facts.

On May 23rd, 1921, as security to Aaron Ratner

for loans to be made by him to the Hub Carpet

Company, the latter executed an assignment

of its accounts due or to grow due. As part

of the transaction, which occurred more than

four months prior to the bankruptcy, the Hub

Carpet Company delivered to him a complete and

detailed list of its outstanding accounts, and on

the 23rd or 24th of each following month, until