#### In re T. A. McINTYRE & CO.

(Circuit Court of Appeals, Second Circuit.

June 6, 1911.)

No. 270.

1 bankruptcy (§ 155*) — Pledged Collaterals — Ownership.

Petitioner. Raving borrowed money from bankrupts, deposited two certain railroad bonds and other securities as collateral. Tlie bankrupts pledged tbe bonds with other collaterals to a bank for loans, without petitioner’s knowledge or consent. On the day bankruptcy intervened, petitioner tendered the bankrupts the amount he owed them and demanded a return of his .securities, .but the tender was refused; and on the .appointment of receivers he made a similar tender and demand. He later demanded the bonds from the bank, and directed it not to sell them. *47The bankrupts’ debt to the bank having been liquidated by a sale of other securities, the bonds were delivered to the receivers, and out of the proceeds of other collateral the entire balance of petitioner’s debt was satisfied. *Held,*flint petitioner was entitled to a return of the bonds from the receivers.

[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 155.*]

Petition to Revise Order of the District Court of the United States for the Southern District of New York.

In the matter of bankruptcy proceedings of T. A. McIntyre & Co. On petition to revise an order directing that certain bonds in the possession of a receiver he sold, and the proceeds in excess of $1,454.93 be turned over to petitioner, Vincent fioeser. Reversed and remanded, with instructions.

P. Chauncey Anderson (Ellery O. Anderson, of counsel), for petitioner.

Irving R. Ernst and D. Raymond Cobh, for respondent.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

*

For other eases see same topic & § number in Dee. & Am. Digs. 1007 to date, & Kep’r Indexes

*

For other cases see same topic & § sumbbb in Dec. & Am. Digs. 1907 to date, & Rep’r Itidexes

LACOMBE, Circuit Judge.

On September 4, 1907, Eoeser borrowed $25,000 from the bankrupt, depositing with it as collateral certain securities, among which there were one $1,000 bond, New York, Chicago & St. Eouis No. 6,122, and one $1,000 bond, Wheeling, Rake Erie Ñ Western No. 2,988. By April 24, 1908, Eoeser had reduced his indebtedness to about $20,000, and the value of his securities was then and has at all times since been several thousand dollars in excess of the amount due. The two bonds were worth about $2,000.

On April 7, 1908, the firm of McIntyre & Co., which was conducting a general brokerage business in the city of New York, borrowed $35.-000 from the Corn Exchange Bank, depositing as collateral a large number of securities, which included Loeser’s two bonds. This was done without the assent or knowledge of Roeser. The firm failed on April 24, 1908, and a voluntary petition in bankruptcy was filed. On the daj" of the bankruptcy Eoeser tendered to McIntyre & Co. payment of the amount owed by him to said firm and demanded return of the securities held as collateral; but the tender was refused and the demand not complied with. Upon the appointment of receivers Loeser made a similar tender and demand upon them, and was informed that they did not have his securities in their possession and could not return them. On April 29, 1908; Eoeser demanded his two bonds from the Corn Exchange Bank and directed it not to sell them. The bank liquidated its loan to McIntyre & Co. out of part of the securities held by it, not selling Eoeser’s two bonds, nor two other bonds which were identified as the property' of two other persons. All these unsold bonds were turned over to receivers. Out of the proceeds of the other bonds, which Eoeser deposited as collateral with McIntyre & Co. the entire balance due on his loan from them has been liquidated, and the bankrupt’s estate is indebted to him for money received on their sale in the amount of several thousand dollars. It has been stipulated,:

> *48“That after the loan made by the Corn Exchange Bank- to T. A. McIntyre & Co. has been fully discharged and after the claims of all claimants in the reclamation proceedings to the surplus funds in the Corn Exchange Bank, with the exception of Vincent Eoeser, have been paid, in accordance with the directions of the special master’s report, the amount of the surplus fund remaining in the possession of the Corn Exchange Bank, which is directed by the report of the special master, and the order of confirmation thereof, to be turned over to the bankrupt’s estate, is the sum of $8,854.44, together with the claimant’s two bonds, as follows: $1,000 New York, Chicago & St. Louis 4% bond No. 6,122. $1,000 Wheeling, Lake Erie & Western first 5% bond No. 2,988.”

Upon this state of facts the disposition of these two bonds is governed by our former decision in these proceedings on the petition of William F. Pippey. 181 Fed. 955, 104 C. C. A. 419. They should be returned to the petitioner Loeser.

The order is reversed, and cause remanded, with instructions to enter an order in conformity with the views expressed in this opinion.