BOWKER v. HAIGHT & FREESE CO.

BOWKER v. HAIGHT & FREESE CO. (Circuit Court, S. D. New York. August 14, 1905.) Claims of Clark Shore, William A. Remale, Arthur M. Whitcomb, and Dora Publes. Wilson R. Yard, for petitioners Whitcomb and Remale. Wm. P. Maloney, for petitioners Publes and Shore. Franklin Bien, opposed. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. It has been the practice in this proceeding, when stock has been found which some one claims to own, and the books, of defendant show no charge against it, and defendant admits that petitioner is not indebted to it, to return the stock to defendant’s customer without expense to the petitioner. In previous applications, defendant’s counsel has submitted an affidavit either asserting or denying such indebtedness; the affiant having examined petitioner’s account in the books, in order to determine the fact. In these four cases, however, no such affidavit is produced, for the alleged reason that defendant’s representative has been refused access to the books kept at the Boston office, and in consequence is unable to ascertain whether defendant makes any claim against petitioner or not. There must be some mistake about this. It may be that general inspection of the books has been refused, but it is inconceivable that the receiver has refused to allow examination of the accounts of individual customers, who make ■claims such as these. Defendant’s counsel will, therefore, have such application made in Boston by defendant’s representative there, and embody the result in an affidavit, which will enable the court to determine whether a claim is or is not made against petitioner. Should examination for this purpose be refused, an affidavit to such effect made by the individual thus excluded may be presented, and the court will then be able to dispose of these four claims in some way or other. Papers will meanwhile be held.