# Brief for the Respondent in Opposition — Dudley v. Mealey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0116%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1945 - **Citation:** 325 U.S. 873 ## Text mae) ee oi git MAAN ASIDE RPT —S——Z a oo ray 25 1945 \ al ee pass } CHATLES ELMORE oRor : Supreme Court of the Unite TEA . OcTOBER TERM, 1944 NO. 1268 PRANK A, DUDLEY, CHARLES DOHERTY and RON- ALD G. WRIGHT, constituting the Stockholders Protective Committee. Petitioners, against CARROLL E. MEALEY, as Trustee of Albany Hotel Cor- poration, Debtor; THE NATIONAL COMMERCIAL BANK AND TRUST COMPANY of Albany, as Inden- ture Trustee for Debtor’s First and Refunding Bonds of 1939, and its First and Refunding Bonds of 1946: BONDHOLDERS PROTECTIVE COMMITTEE for the holders of Debtor’s First and Refunding Bonds of 1946; FIRST TRUST COMPANY of Albany, as Inden- ture Trustee for Debtor’s General Mortgage Bonds and its 7% Gold Bonds; GENERAL MORTGAGE BOND. HOLDERS PROTECTIVE COMMITTEE; and FIRST TRUST COMPANY of Albany, Respondents. In Proceedings for the Reorganization of Albany Hotel Corporation, No. 32,561 TO PETITION FOR WRIT OF CERTIORARI Attorney for Respondents, Office and Post-Oftice Address. GEORGE J, Harr, 2p, 7 State St., Albany 1, N. Y, Of Counsel, 74 Chapel Street, Albany 7, N.Y. INDEX Statement a te tae tie SAE SBF 8D Sou RI ey la ig Aa, wae Point [: The question of insolvency is one of fact not re- Viewable by this Court te ee i ee ee a ee et ee Point I]: The decision of the Circuit Court is not in con. flict with the decisions of this Court PR te we * Point IIT: The fact that the Plan contemplates a sale to a new corporation is expressly within the con- templation and provisions of Chapter X Point IV: The judgment which petitioners desire to review is not a final judgment and should not be re- viewed by this Court Point V: The petition for a writ of certiorari should be itp me Reet eT Ee eae TABLE OF CASES CITED Bement v. National Harrow Co... 186 Rie eee Moe's wicasd Matter of Central Funding Corp.: Union Trust Co, of Md. v. Wagner (C. C. A. 2d) 75 FB. (2d) 256 UPS ice eb Continental Insurance Co, y. Louisiana Oil Refining Co, (C. C. A. Sth) 88 F. (2d) 933 ......)........ In re Englander Spring Co. (D.C) N.Y.) 17 F. Supp. 15; affd. without opinion (C, CA. 2a) 86 FL (2d) 998 , 6 ee ee 2 atk PONE RT ee A RE OEE OS SE ERS Ran SM Group of Institutional Investors y, Chicago, M.. St. P. & P. R. Co, B18 WU. B. GBB 2... cece eee e eens 4 Hamilton-Brown Shoe Co, v. Wolf Bros. & Co., 240 OE. 6 vvccuscsinsnadeedesctuendeaseauaes Hedrick vy. Atchinson, T. & S. F. R. Co., 167 U.S. : ener ere rrerrrererys eT TE hay ht Jenkins v. Neff. 186 U.S. 230 2... ce eee ee ees Kaufman v. Treadway, 195 U.S. 271... 6... e eee ee 4 In re Porto Riean Tobacco Co. (C. C. A. 2d), 112 F. (DA) GBB orcs cccccnneccncnsnccccccccceeesesass 6 Toledo Scale Co. v. Computing Seale Co., 261 U. 8. BD nc ce nde ten wesc deneccecsteuseuseesueusenas 7 STATUTES CITED Chap, X, Sec, 216 of Bankruptey Act; 11 U.S. C. A., Me )) Se eeeereeTeTeTe TC CET TSE Ter Te 6 IN THE Supreme Court of the United States OcToper TERM, 1944 No. 1268 . PRANK A. DubLEY, CHARLES DouERTY wnd RoNnaLtp G. Wrigur, constitut- ing the Stockholder’s Protective Committee, Petitioners, against CARROLL E. MEALEY, as Trustee of Albany Hotel Corporation, Debtor, et al., Respondents. In Proceedings for the Reorganization of Albany Hotel Corporation, No. 32,561. BRIEF OPPOSING WRIT OF CERTIORARI This brief is respectfully submitted on behalf of all Respondents. Statement Albany Hotel Corporation, the Debtor, is the owner and operator of the Ten Eyck Hotel in the City of Albany, New York. On March 17. 1943, The National Commercial Bank and Trust Company of Albany, as Indenture Trustee 5 Ne MONEE: ee MTC | under the mortgage given to secure the Debtor's first and refunding mortgage bonds, instituted suit in the Supreme Court of the State of New York, County of Albany, to fore- close said mortgage, and had a Receiver appointed. On March 20. 1943, the Debtor filed its petition under Chapter X of the Bankruptey Act, seeking leave to effect a reorgan- ization, On the same day the District Court for the North- ern District of New York made its order approving said petition as properly filed, and appointed the Respondent, Carroll E. Mealey, Reorganization Trustee, His appoint: ment was subsequently made permanent. On or about January 12, 1944, the Reorganization Trustee submitted a proposed reorganization plan, Thereafter the petitioners filed a proposed plan, The record tiled by peti- tioners with this Court deals almost exclusively with the testimony taken before the District Court in connection with said original plans. The hearings convinced the Trustee that neither plan was feasible and could not properly be ap- proved by the Distriet Court. Accordingly the Trustee, on or about April 29, 1944, submitted an amended plan. Said amended plan made no provisions for stockholders, After further hearings the Distriet Court made its order, dated June 13, 1944, finding the Debtor insolvent (R. 39), finding the plan filed by the petitioners (the stockholders neither fair, equitable nor feasible (R. 39), and approving the amended plan filed by the Trustee (R. 39). The peti- tioners appealed to the Circuit Court of Appeals from said order (R. 44). On January 5, 1945, the Cireuit Court handed down its decision, accompanied by an opinion by Judge Learned Hand evidencing a most painstaking study not only of the briefs of counsel but of the printed record and the several exhibits handed up to the Court upon the argument but not contained in the printed record, wherein after reviewing the 3 facts and figures at length (R, 424), he says: “the debtor was plainly insolvent.” (R. 426.) (Italics ours.) It re- manded the cause to the District Court for further proceed- ings not inconsistent with its opinion (R. 432), Petitioners in their petition state (page 3) that: “Debtor never operated the hotel property.” This same statement is reiterated at page 10. The fact is that at all times since built the hotel has been owned by Debtor. It was operated by The Ten Eyek Co., Inc. as lessee until the bankruptey of said lessee in 1942, at which time the Debtor took over the operation and so continued until the reorganization proceed- ing (R. 254, 255, 256). During the entire operation, both by The Ten Eyck Co., Ine., and Debtor, United Hotels Company of America, Ine., managed the hotel under a series of man- agement contracts. Each of said three corporations had a Board of five Directors, The petitioners, Frank >. odode. oP an eI EN: POINT IV. The judgment which petitioners desire to review is not a final judgment and should not be reviewed by this Court. The judgment. in question remanded the reorganization proceeding to the Distriet Court for further proceedings not inconsistent with its opinion (R. 431, 432). This Court has repeatedly said that except in extraordinary cases a writ of certiorari is not issued until final decree, and that the cir- cumstanee that the decision of the Circuit Court of Appeals is not a final one is a fact which standing alone may furnish sufficient ground for the denial of the application. Hamilton-Brown Shoe Co, v. Wolf Bros. & Co.. 240 U.S. 251. Toledo Seale Co. y, Computing Seale Co. 261 U.S. 399. POINT V. The petition for a writ of certiorari should be denied. Dated, May 23. 1945. Respectfully submitted, CHARLES FE, NICHOLS. Attorney for Respondents, Office and Post- ftice Address, 75 State Street. Albany 1, N.Y, GrhoRGE J. Harr, 2p, Of Counsel, TE Chapel Street, Albany 7, N.Y, a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0116%3A2. Public record. Not legal advice.