NORTEX TRADING CORP., Claimant-Appellant, v. Samuel NEWFIELD, Trustee of Kaunitz & O'Brien, Inc., Bankrupt, Trustee-Appellee
NORTEX TRADING CORP., Claimant-Appellant, v. Samuel NEWFIELD, Trustee of Kaunitz & O'Brien, Inc., Bankrupt, Trustee-Appellee
NORTEX TRADING CORP., Claimant-Appellant, v. Samuel NEWFIELD, Trustee of Kaunitz & O'Brien, Inc., Bankrupt, Trustee-Appellee
2d 163
Rothstein & Korzenik, New York City (Harold Korzenik, New York City,
of counsel), for claimant-appellant.
David Haar, New York City, for trustee-appellee.
Before LUMBARD, Chief Judge, and CLARK and KAUFMAN, Circuit
Judges.
KAUFMAN, Circuit Judge.
Nortex, appellant here, contends that the absence of personal service of the
order renders the proceedings void, as the referee is without personal
Appellant does not contest the fact that it is within the power of the referee to
disallow the claim filed by Nortex until such time as Nortex surrenders the
alleged preference. This power is expressly provided in section 57, sub. g of the
Bankruptcy Act, 11 U.S.C. 93, sub. g. It contends however, that the order to
show cause goes further and seeks affirmative relief in substance, a turnover
order necessitating personal service. We do not agree. We are persuaded by
the analogy between the proceedings before us and the ordinary counterclaim in
a civil action under Rule 13 of the Federal Rules. Service of a pleading
containing a counterclaim may be made upon the opponent's attorney. 3
Moore's Federal Practice, para. 13.10 (1948). See General Order 4, 11 U.S.C.
foll. 53.
The trustee has assured us that he is not seeking and will not seek an order
punishing the claimant for contempt in the event of its failure to comply with
any direction to pay over the sums sought by the trustee. It is therefore
unnecessary for us to determine whether the trustee was required to proceed in
the first instance by papers served upon the claimant personally. See 5A
Remington on Bankruptcy, 2425 (14th ed.). Ordinary motion practice under