TREMONT TRUST CO. v. COHEN

TREMONT TRUST CO. v. COHEN. (Circuit Court of Appeals, First Circuit. February 4, 1920.) No. 1434. Bankruptcy <S=»303(3) — Finding of pbeference suppobted by evidence. A finding tnat a creditor had reasonable ground for believing that bankrupt was insolvent when its debt was paid a few days before bankruptcy held supported by the evidence. Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge. Suit in equity by George I. Cohen, trustee in bankruptcy of Israel Sternberg, against the Tremont Trust Company. Decree for complainant and defendant appeals. Affirmed. For opinion below, see 256 Fed. 399. Asa P. French, of Boston, Mass., for appellant. Joseph B. Jacobs, of Boston, Mass. (Jacobs & Jacobs, of Boston, Mass., on the brief), for appellee. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is an appeal by the Tremont Trust Company from a decree of the District Court for Massachusetts in an equity suit brought by the trustee in bankruptcy of Israel Sternberg to have certain payments made by the bankrupt to the Trust Company within four months of the filing of the petition in bankruptcy declared preferences and paid to the plaintiff. It appears that the Trust Company discounted for Sternberg four notes, of $250 each, which fell due December 1, 8, 15, and 22, 1916.' The first two notes he paid December 1, 1916, and the last two December 14, 1916. A petition in bankruptcy was filed against him December 19, 1916, and he was later adjudged a bankrupt. In the District Court the payment of $500 made on December 14, 1916, was decreed to be a preference which the plaintiff was entitled to recover, and. the Trust Company appealed. The only question presented is one of fact, namely, whether the court below was justified in finding that the Trust Company had reasonable cause to believe that Sternberg was'insolvent on December 14, 1916. We have carefully examined the evidence bearing upon the question, and are of the opinion that we would not be warranted in finding that the conclusion-reached in the court below was clearly wrong. The evidence is conflicting. The credibility of witnesses is involved, and the witnesses are not before us. Such being the case, we do not think that the finding should be disturbed. The decree of the District Court is affirmed, with costs to the appellee.