EISENBERG et al. v. WEISSKOPF. In re STERN, 258 F. 617

BAKER, Circuit Judge. Before the proceedings were instituted which resulted in the adjudication of Stem as a bankrupt, petitioners Eisenberg and Gorenstein were in possession of certain goods. After adjudication respondent Weisskopf, receiver and later trustee, filed a petition for a

summary order on Eisenberg and Gorenstein to surrender the goods to the estate. At the

summary hearing Stern testified that to evade the levy of an attachment he had put the goods into the possession of Eisenberg and Gorenstein as his agents or bailees to hold possession for him.

On the other hand, Eisenberg and Goren-stein testified that the goods, originally theirs, Tiad been put into Stern’s retail store on consignment or conditional bills of sale; that under their reservation of title they had taken possession, in order to prevent their goods from coming into the possession of the attaching creditor; and that, prior to the filing of the petition in bankruptcy, they were in the physical possession of the goods under their aforesaid right to take and hold them as their own.

And thereupon they insisted that "they should not summarily be deprived of possession and that their title could only be adjudged in a plenary suit. The referee, although stating that he accepted Stern’s testimony as true, found that the facts as sworn to by Eisenherg and Gorenstein would, if true, constitute, an adverse claim, under which they could not be deprived of their possession of the goods except as the result of a plenary suit. The District Court reversed the order of the referee dismissing the

summary proceeding. On the authority of In re Goldstein, 216 Fed. 887, 133 C. C. A. 91, and eases there cited, the order of the District Court is Reversed.