(dissenting).
This case is not governed by Bronx Brass Foundry v. Irving Trust Co., 56 S. Ct. 451, 452, 80 L.Ed. -. There the Supreme Court said: “Several hearings were had before the referee and the evidence introduced clearly indicated that the payments would, upon bankruptcy, effect a preference over other creditors of the same class, and that the claimant had received them having reasonable cause to believe the debtor insolvent.” Before the hearing closed, and in view of an adverse ruling on the admission of evidence, the creditor filed a withdrawal of its claim *742and left the'hearing. There it clearly appeared that not only had the claimant presented the case on the question of preference and argued it, but .that the proof so far given was a fair basis for anticipating a judgment in favor of his opponent.
In the instant case, the claimant did not raise the issue of preference by filing his claim. The trustee’s objections first raised that point. Without reply or argument, the claimant elected to withdraw rather than to submit that question to summary determination. The claimant withdrew only after the situation had changed by the payment to it through the sale of collateral of the amount of its claim. This constituted a sufficient reason for granting permission to withdraw. While the District Court may have discretion by reason of the rule of that court, the discretion was abused here in view of the payment made. The guarantor has not asked to be subrogated as claimant instead of the bank under section 57i, Bankr.Act, 11 U.S.C.A. § 93 (i). The Supreme Court has recently reaffirmed the admitted general right of withdrawal in Jones v. Securities & Exchange Commission, 56 S.Ct. 497, 80 L.Ed,
The rule of the District Court should not have been used to effect a denial or permission to withdraw without even the exercise of judgment as to the wisdom of such withdrawal.
I dissent.