The opinion of the court was delivered by: KALODNER
Plaintiff, a trustee in bankruptcy, brought suit against the defendants, alleging fraudulent acquisition and disposition of certain assets of the bankrupt estate.
The complaint demands (1) voiding of the transfer of the assets as fraudulent; (2) an accounting by the defendants; (3) judgment for the fair market value of the assets involved; (4) that the defendant Bertha Collier be declared a trustee ex maleficio and that all funds deposited in her name be declared funds belonging to the trustee and that she be restrained and enjoined from withdrawing them; (5) that defendants pay plaintiff's costs and attorneys' fees, and (6) "such other and further relief as is just".
Plaintiff filed a motion demanding a jury trial. Defendants moved to strike.
Whether or not plaintiff is entitled to a jury trial as "of right" is the question to be determined. The decision must rest upon a prior determination as to the nature of the complaint -- is the action in its essence one at law or equity? If it is in law, the plaintiff is entitled to a jury trial; otherwise not.
It is first in order to consider the allegations of the complaint.
The allegations of the complaint, denied by the defendants' answer, are that in fraud of the bankrupt's creditors, the defendant Philip Collier purchased from the bankrupt, through an agent of the latter, large stocks of assorted furs and coats, at prices far below the existing market value thereof and at a time when the seller was insolvent; further, that the sales were not in the ordinary course of business but actually were part of a preconceived scheme to defraud the seller's creditors of which fact the defendants had actual or constructive notice. It is alleged, in addition, that Philip Collier immediately resold the goods to divers persons and firms at prices in excess of what he paid for them but still below their fair market value. With regard to the corporate defendant, Crawford's of Philadelphia, Inc., it is alleged that Philip Collier is president thereof and, together with his wife Bertha, another defendant herein, are the chief stockholders controlling the corporation. Further, plaintiff alleges that Philip Collier, in making the purchases mentioned previously, drew either from the bank account of the corporate defendant or that of his wife Bertha, and the proceeds from the resales were deposited in the latter's bank account, she being either the beneficiary of the profits of the fraudulent transactions or a straw party for either or both of the other defendants. Moreover, it is alleged with regard to these purchases that, in so doing, Collier assumed to act as the duly authorized agent of the corporate defendant which purportedly received the merchandise involved.
It is on the basis of these allegations that the plaintiff trustee prayed for the relief already stated.
The relevant provisions of these Rules are:
Rule 2: "There shall be one form of action to be known as 'civil action.'"
Rule 38(a): "The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate."
(b): "Any party may demand a trial by jury of any issue triable of right by a jury * * *."
Rule 39(a): "When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless * * * (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those ...