Milton R. ACKMAN, as Trustee of American Foam Rubber Corporation, Bankrupt, Plaintiff-Appellant, v. WALTER E. HELLER COMPANY, Inc., Defendant-Appellee.

No. 337, Docket 32985.United States Court of Appeals, Second Circuit.Argued December 9, 1969.
Decided December 16, 1969.

Appeal by the trustee in bankruptcy from (1) a judgment dismissing a complaint to set aside a preference entered July 1, 1968 in the United States District Court for the Southern District of New York after a five-day trial without a jury before Wyatt, Judge, and (2) an order by Wyatt, Judge, dated October 23, 1968, denying the trustee’s motion pursuant to Fed.R.Civ.P. 60(b) to open the trial to adduce evidence of interest on loans to the defendant.

Jacob Greenwald, New York City (Kleeberg Greenwald, Alexander H. Rockmore, New York City, of counsel), for plaintiff-appellant.

Charles Seligson, New York City (Seligson Morris, Robert Popper, New York City, of counsel), for defendant-appellee.

Before MOORE and KAUFMAN, Circuit Judges, and RYAN,[*]
District Judge.

[*] Of the Southern District of New York, sitting by designation.


The judgment of the District Court is affirmed. There is ample support in the record to sustain the findings in the opinions of Judge Wyatt, reported at 307 F. Supp. 971 (S.D.N.Y. 1968), and 307 F. Supp. 958 (S.D.N.Y. 1968), that (1) there is no “reasonable cause to believe that the debtor is insolvent” as required to make a preference voidable under § 60(b) of the Bankruptcy Act, 11 U.S.C. § 96(b) (1964) and (2) there was no “intent of giving a preference to any particular creditor over other creditors” as required by § 15 of the New York Stock Corporation Law, McKinney’s Consol. Laws, c. 59, made applicable by § 70(e) of the Bankruptcy Act, 11 U.S.C. § 110 (e) (1964).

Page 21