Sterling National Bank & Trust Co. v. 1231 Park Ave. Holding Co.

Majority

p. 522

Sterling National Bank & Trust Company of New York, as Trustee under a Declaration of Trust Entered Into Pursuant to a Plan of Reorganization Confirmed by Order of the United States District Court for the Southern District of New York in Proceedings for the Reorganization of Brightwater Theatre Corporation, Appellant, v. 1231 Park Ave. Holding Co., Inc., et al., Defendants, and Joshua Morrison et al., Defendants-Respondents.

First Department,

July 2, 1943.

p. 523

Leslie Kirsch of counsel (Joseph Glass with him on the brief; Glass S Lynch, attorneys), for appellant Sterling National Bank & Trust Company of New York, as trustee.

Mitchell Salem Fisher of counsel (Manfred Nathan with him on the brief; Guggenheimer <& Untermyer, and Manfred Nathan, attorneys), for respondent Committee of Certificate Holders of 1235 Park Avenue.

Wilmurt B. Linker (James G. Mulligan with him on the brief; Delafield, Marsh, Porter & Hope, attorneys), for respondent Joshua Morrison.

In rejecting the plan of reorganization recommended by the referee the court stated that though there might be justification for that plan upon the facts, it was precluded from considering it under the law. In holding that it had no power under the Burchill Act (Beal Property Law, §§ 119-123) to approve a plan of reorganization except a corporate reorganization plan, we think the Special Term was in error. The court has power under the statute to approve a plan of liquidation upon a declaration of trust as recommended by the referee, (L. 1936 ch. 830, see title of act; Beal Property Law, § 96, subd. 6; § 121.) For the reasons set forth in the report of the referee

p. 524

we think that the plan recommended by him should have been approved by the court.

The order should be reversed, with twenty dollars costs and disbursements, the motion to confirm report of the referee granted and the plan of .reorganization recommended by him is approved.

Martin,. P. J., Townley, Dore, Cohn and Callahan, JJ., concur.

Order unanimously reversed, with twenty dollars costs and disbursements, the motion to confirm report of the referee granted and the plan of reorganization recommended by him approved. Settle order on notice.