Page images
PDF
EPUB
[blocks in formation]

pay into court the proceeds in excess of storage charges, to await the further order of the court. (Added March 19, 1908.)

ADDITIONAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF NEW YORK Terms of this court for the trial of actions at law and suits in equity will be held on the first Wednesday of February, April, June, October, and December in each year. Fourteen days' notice of trial is required in all cases. Notes of issue, in cases to be tried by a jury, must be filed fourteen days before trial, and in other cases five days before trial. They should state the title of the case, the names of the attorneys, the nature of the action, the date of issue, and whether the trial is to be by a jury.

In all suits in equity brought by trustees in bankruptcy to recover money or property alleged to have been transferred fraudulently, or as a preference, issues shall be tried by a jury, unless otherwise specially ordered. Such issues may be specially framed by the parties. If not so framed the issue shall be whether the complainant is entitled to the relief demanded in the bill of complaint.

FOR THE NORTHERN DISTRICT OF NEW YORK

Rule I. Sessions of district court Except during the absence or inability of the district judge the district court will be open for the transaction of business as a court of bankruptcy at the United States court room, in the city of Utica, on the first Tuesday of every month, and at the chambers of the judge in Norwich, N. Y., on the third Tuesday of every month, at 10 o'clock in the forenoon, except during the months of July and August, and when the judge is holding a term elsewhere. No case or matter in bankruptcy will, in or

[blocks in formation]

dinary circumstances, be taken up on other days. In case of the non-attendance of the judge at the time hereby appointed, or at any other time which may by special order be designated for any special session of the court, all proceedings shall be continued, as of course and without prejudice, to the next session of the court. The district court will also be open for the transaction of business as a court of bankruptcy on the first days of the regular terms appointed to be held at Albany on the second Tuesday in February, at Syracuse on the first Tuesday in April, at Binghamton on the second Tuesday in June, at Auburn on the first Tuesday in October, and at Utica on the first Tuesday in December.

Rule II. Notice of motions and other hearings Motions must be noticed and orders to show cause must be made returnable on Tuesdays and at the times and places indicated in the preceding rule. If noticed for any other day, except by leave of the judge, the notice will be treated as a nullity. Notice of motion, if personally served, must be served at least eight days, and if served by mail at least ten days, before the time appointed for the hearing. The judge or referee may, upon an affidavit showing grounds therefor, make an order to show cause why the relief demanded should not be granted and in the order may direct that service of less than eight days shall be sufficient. When not otherwise specially provided for by law, all notices of other hearings and proceedings in bankruptcy shall conform to the foregoing provisions as to notices of motion.

Rule III. Proceedings in counties where there is no referee or

newspaper In case a petition is filed by or against a bankrupt who resides in any county where there is a vacancy in the office of referee or where the referee is disqualified, absent, sick

[blocks in formation]

or otherwise unable to act, the reference shall be made to the referee who is most conveniently located to the bankrupt's residence. In case a petition is filed by or against a bankrupt who resides in a county where there is no designated newspaper, or where the designated newspaper for any reason refuses to act, the notices required by law may be published in a newspaper named by the parties in interest published in the county where the bankrupt resides, or the major part of his property is situated.

Rule IV. Filing petition; deposit of fees All petitions shall be filed with the clerk at his office in Utica. At the time of filing a petition thirty dollars shall be paid to the clerk by the petitioner, except in cases where a fee is not required by a voluntary bankrupt; being ten dollars for the clerk, fifteen dollars for the referee, and five dollars for the trustee. In case the petition is dismissed it shall be the duty of the clerk forthwith, to return to the petitioner the amount deposited for the fees of the referee and trustee, respectively. Voluntary petitions must be filed in triplicate and involuntary petitions in duplicate. When the judge is absent from the district it shall be the duty of the clerk to enter an order as provided in Form No. 15, reciting the absence of the judge, and referring the case to the proper referee. When the judge is present, a court order shall be entered as provided in Form No. 14. Fees deposited by the petitioner in an involuntary case must be returned to him by the trustee out of the estate of the bankrupt in all cases where property sufficient for such purpose comes to the hands of the trustee.

Rule V. Petition in forma pauperis In case a petition is filed by a proposed voluntary bankrupt which is accompanied by an affidavit under subdivision 2 of section 51 of the act, it shall be the duty of the clerk to file said petition without the payment of the fees

Hearings; involuntary petition - Rules 6, 7

provided for by law. If the clerk, or the referee to whom said petition is referred, has reason to believe such affidavit is false, he may file a certificate to that effect and cause the bankrupt to be examined. If upon such examination the referee reports in writing that the statements contained in such affidavit are false, and that the bankrupt has or can obtain money with which to pay said fees, such report shall be sufficient proof upon which to base proceedings under subdivision 4 of General Order No. XXXV.

Rule VI. Referees to fix time and place of hearings

The clerk shall mail a copy of the order of reference to the referee, and thereafter all proceedings, except such as are required by the act, or by the general orders, to be had before the judge, shall be had before the referee, who shall fix the time when and the place where he will act upon the matters arising in the case; except that all meetings of creditors must be held in the county of the bankrupt either at the county seat or at a place more convenient for the parties in interest. If the referee cannot attend on the day named in the order of reference he may name a subsequent day within ten days thereafter, and give the bankrupt timely notice of the change; but the day first named shall be the day from which the bankrupt shall be subject to the orders of the court as provided in General Order No. XII.

If the place named in the order of reference be manifestly inconvenient as a place of meeting for the parties in interest, the referee may fix a more convenient place and give the bankrupt timely notice of the change. Rule VII. Involuntary petition; notice to debtor; reference on

default Where an involuntary petition is filed in conformity with law it shall be the duty of the clerk to enter an order to show cause and issue a subpæna, as provided in Forms

Pleadings; trial — Rule 8

No. 4 and No. 5, respectively, stating the time and place when the debtor is to appear. There shall be endorsed upon the subpoena the following:

“Notice to defendant. It is not necessary for you to appear on the return day of this subpæna. You may appear and plead to the petition at any time within five days after said return day.”

In case no pleadings are filed by the bankrupt or any of his creditors the judge, or, in his absence, the clerk, will enter the proper order without further appearance tion on the part of the petitioner.

Rule VIII. Pleadings in involuntary cases; trial by jury

Prior to the denial of bankruptcy as provided in Form No. 6, the pleadings in involuntary cases on the part of the alleged bankrupt, or any of his creditors who oppose the adjudication, shall conform as nearly as may be to the pleadings of the defendant in an equity action in the circuit court of the United States.

In case a jury trial is demanded, as provided by section 19 of the act, the clerk shall enter an order as provided in Form No. 7, and the issue may be noticed for trial at any of the regular terms of the district court and shall proceed in all respects like the trial of any action at common law, except that the court may frame and send to the jury special questions presenting the issues to be tried. Upon the coming in of the verdict the judge may, in accordance therewith, make an adjudication either that the debtor is or is not a bankrupt. In case a jury trial is not demanded the judge may determine the issues presented by the pleadings or he may refer the same, or any specified issue, to a special master to ascertain and report the facts, and he shall report the evidence with findings of fact and conclusions of law separately stated.

Except in jury trials causes cannot be noticed for proof

« PreviousContinue »