Surface Transit, Inc. v. Saxe, Bacon & O'shea, in Re Allowances in Estate of Third Avenue Transit Corporation, Debtor ( 1959 )

SWAN, Circuit Judge

(dissenting in part).

I disagree with my brothers’ decision as to disqualification of the firm of Baker, Obermeier & Rosner. It is my understanding, as it was Judge Dimock’s, that the rule in this circuit is that under § 249 the fiduciary is not disqualified for compensation by transactions in which he had no beneficial interest, and that he is not conclusively presumed to have a beneficial interest in transactions of his wife. Judge Dimock gave the matter very careful consideration. For the reasons stated in his opinion I think the award to Baker, Obermeier & Rosner should be allowed to stand.

In other respects I concur in the opinion of my brothers.