United States of America v. President & Directors of Manhattan Co.

Upon motion of defendant, President and Directors of the Manhattan Company, successor to the Bank of the Manhattan Trust Company, as agent or

For present ‘purposes, every fact set forth in the complaint must be deemed to be true. Referring to the facts alleged, in so far as it is deemed here necessary, the following appears:

Prior to 1918 the Northern Insurance Company of Moscow was an insurance company, organized and existing under the laws of the Empire of Russia, and in 1918 and thereafter had assets within the State of New York consisting, in part, of a deposit of cash, securities and other assets with the Superintendent of Insurance as a statutory requirement preliminary to and as a condition of its being permitted to transact business within this State. During the years 1918 and 1919, by decrees, laws, enactments and orders of the Russian State, the business of insurance in all its forms was proclaimed to be a monopoly of the Soviet government, all Russian insurance companies were dissolved, terminated and liquidated, their property and assets of every kind and wherever situate were nationalized, their debts, including the obligation to creditors who are named as defendants in this action, canceled, extinguished, annulled and discharged, the rights of all stockholders in and to such property and assets were extinguished and all obligations and liabilities of such companies to them were discharged. As a consequence, the property and assets of the insurance company within the State of New York became the property of the Russian State and so remained until November 16, 1933,

It further appears from the complaint that on June 9, 1926, the Superintendent of Insurance of the State of New York was appointed liquidator of the United States branch of the Northern Insurance Company by an order of the Supreme Court of this State, took possession of its assets and thereafter proceeded to liquidate its business to the end that he satisfied the claims of domestic creditors, and the surplus consisting of cash, securities and other assets amounting approximately to $245,307.60 remained in his possession. Thereupon the Superintendent of Insurance brought his account into court and requested a direction concerning the disposition of the surplus. That question reached this court. By a decision February 14, 1931, the surplus was directed paid to Boris Schwetzoff and Nicholas Goutchkoff, as surviving directors of the insurance company, who constituted less thati. a quorum thereof, as conservators of its property, upon their filing with the court- a duly approved surety bond in a penalty equal to the sum to be delivered (Matter of People [Northern Ins. Co.], 255 N. Y. 433 ). Such conservators, being unwilling to act, before accepting any funds undertook, on May 6, 1932, to execute and deliver to the Bank of the Manhattan Trust Company, predecessor of defendant, a general assignment of all the property of the insurance company in trust for the benefit of its creditors. The assignment and trust were accepted by the trust company and recorded in the New York County Clerk’s office on June 26, 1932. The trust company also filed a bond which was approved by a justice of the Supreme Court on July 2, 1932. On March 7, 1933, this court

The trust company received $245,307.60 from the Superintendent of Insurance on August 3, 1933, and on November 13, 1933, undertook, as such agent and depository, pursuant to an order of the Supreme Court, to deliver to itself as assignee for the benefit of creditors of the insurance company all of such assets and property. On March 13, 1934, defendant received other assets amounting to' $87,686.45. Thereafter, defendant, as assignee, filed its account and a referee was appointed by the Supreme Court to take and state the account and to hear objections to any claims and to report to the court. Pending final report of the referee"(not yet filed) the court made an ad interim, order directing payment of claims of certain foreign creditors of the insurance company and counsel fees.

Demand on defendant was made by plaintiff for the funds in question on August 24, 1934, and refused, and on the following day a suit in equity was commenced by plaintiff against defendant in the United States District Court for the Southern District of New York to recover the aforesaid funds. On December 20, 1934, the complaint was dismissed by the District Court (10 Fed. Supp. 269) on the ground of insufficiency. This order was affirmed by the Circuit Court of Appeals, Second Circuit, on May 27, 1935 (77 Fed. Rep. [2d] 880), and by the United States Supreme Court on January 6, 1936 ( 269 U. S. 463 ). Affirmance by the Supreme Court was placed on the ground that the District Court was without jurisdiction to entertain the suit inasmuch as the funds were in the custody of the Supreme Court of this State.

Plaintiff thereupon commenced this action in equity, alleging that it “ possesses and asserts a' sovereign title, right and interest under the Constitution, laws, treaties, and authority of the United States in and to the funds which are the subject of this action,” to restrain further action in the assignment proceedings and for a determination herein of its title and rights to the fund. It seeks to bring in all adverse claimants to the fund, including friendly aliens, to the end that the rights and equities which any or all claimants may have to the surplus may be adjudicated in one action without clogging the courts with a multiplicity of suits, that plaintiff’s rights may be determined and that any moneys to which it is entitled may be held within the control of the court and not distributed and dissipated beyond hope of recovery if it should be adjudicated that it is entitled thereto. It seeks to have the assignment by the directors of the insurance company to defendant for the benefit of creditors set aside and declared void and to have it adjudged that defendant holds the surplus as agent and depository only as theretofore directed by this court and prays that defendant may be required to account and turn over such surplus to plaintiff. It is clear from the allegations of the complaint that great and irreparable damage may result if plaintiff

Certain decisions of this court made subsequent to 1918 involving the Northern Insurance Company and the liquidation of its assets, the situs of which was within the State of New York or relating to the affairs of other Russian corporations having property within this jurisdiction at the time of or subsequent to the Soviet decree of confiscation, were rendered prior to November 16, 1933, the date of recognition of the Soviet government by the government of the United States (Wulfsohn v. Russian S. F. S. Republic, 234 N. Y. 372 ; Russian S. F. S. Republic v. Cibrario, 235 N. Y. 255 ; Matter of People [City Equitable F. Ins. Co.], 238 N. Y. 147 , 158; Sokoloff v. National City Bank, 239 N. Y. 158 ; James & Co. v. Second Russian Ins. Co., 239 N. Y. 248 ; 240 N. Y. 581 ; Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149 , 682; Joint Stock Co. v. National City Bank, 240 N. Y. 368 ; First Russian Ins. Co. v. Beha, 240 N. Y. 601 ; Matter of People [Norske Lloyd Ins. Co.], 242 N. Y. 148 ; Matter of People [Second Russian Ins. Co.], 243 N. Y. 524 ; 255 N. Y. 412 , 436; James & Co. v. Rossia Ins. Co., 247 N. Y. 262 ; Petrogradsky M. K. Bank v. National City Bank, 253 N. Y. 23 ; Severnoe Securities Corp. v. London & Lancashire Ins. Co., 255 N. Y. 120 ; Matter of People [Russian Reinsurance Co.], 255 N. Y. 415 ; Matter of People [First Russian Ins. Co.], 255 N. Y. 428 ; Matter of People [Northern Ins. Co.], 255 N. Y. 433 ; 261 N. Y. 616 , 624; 262 N. Y. 453 ; Salimoff & Co. v. Standard Oil Co., 262 N. Y. 220 ). Others have been rendered since recognition. (Vladikavkazsky Ry. Co. v. New York Trust Co., 263 N. Y. 369 ; Dougherty v. Equitable Life Assur. Soc., 266 N. Y. 71 ; Matter of People [First Russian Ins. Co.], 266 N. Y. 421 .)

In all cases above referred to where the question was discussed we have said that, prior to recognition of the Soviet government, by the government of the United

In United States v. Belmont (85 Fed. Rep. [2d] 542) it was held that the situs of the bank deposits there in question was within the State of New York and the nationalization decree, if enforced, would put into effect an act of confiscation which would be contrary to the public policy of this State and likewise infringe the public policy of the United States (citing Vladikavkazsky Ry. Co. v. New York Trust Co., supra; Laws of 1936, ch. 917; Civ. Prac. Act, § 977-b), but, upon reversal on appeal, the Supreme Court stated: “ We take judicial notice of the fact that coincident with the assignment set forth in the complaint, the President recognized the Soviet Govern

Although the decree appropriating property and assets of the insurance company extended to such property and assets of every kind and wherever situated, we find that the decision in the Belmont case goes no further than to hold, in so far as it may be applicable here, that recognition must be given to the validity of the confiscation decree by which the assets of the insurance company located in this country became the property of the Soviet govern

It is clear that we would not in this forum recognize the confiscation decree of 1918 to the end that .the Soviet government or its assignee might assert title to the assets of the foreign corporation within our jurisdiction to the prejudice of our own nationals who are creditors. The claims of domestic creditors of the insurance company have been fully satisfied in the proceedings instituted and carried on by the Superintendent of Insurance. Had there been a receiver at the domicile of the corporations it would be our duty to turn over the surplus to such receiver. (Matter of People [City Equitable Fire Ins. Co.], 238 N. Y. 147 , 156.) But there is no receiver of the Russian insurance company at its domicile. In Russian territory it ceased to exist as a corporation. The corporation has been nationalized and its assets confiscated. We have held, however, " that the surplus must be made available for the payment of creditors and policyholders with claims founded upon foreign business,” and that, upon appearance of solvency and lack of showing “ that waste or spoliation of the assets is threatened or intended,” the surplus should be turned over to the board of directors of said corporation, “ represented by a quorum, [who] were still competent to act.” (Matter of People [Russian Reinsurance Co.], 255 N. Y. 415 , 422, 425.)

The plaintiff here as assignee of the Soviet government holds no greater title and stands in no better position

The board of directors of the insurance company consisted of five regular members and two alternate members, of whom two only survive. Whether regular or alternate, the two members who were named as conservators did not constitute a quorum. In directing that

Assuming, without deciding because the matter is not before us on this appeal, that the proceeding for the distribution of the surplus in the possession of defendant was authoritatively taken, plaintiff might have been permitted to intervene therein and assert its rights. The opportunity to there present its claims was not given. From the order denying it the right to intervene, the time to appeal has expired. No course was left open to it except the commencement of this action. It would be unjust and inequitable to deny it the right to institute this action and assert and have adjudicated its alleged title and right to the funds. The creditors of the insurance company who have asserted claims to the fund and have been named defendants in this action but have not been so far served with process presumably will be served. If not, they or others not named who may conceive that they have an interest in the surplus may undertake to intervene and have their rights adjudicated. Indeed, plaintiff recognizes the right of the named creditors to have their claims adjudicated in this action by making them parties and, additionally, the right of others to appear, in the prayer for relief. Nothing here said, however, may be construed as a determination of the right of foreign creditors to intervene. That question may be settled when all the facts are properly before the court.

The judgment of the Appellate Division and the order of the Special Term should be reversed, with costs in this court and in the Appellate Division, and the motion to dismiss the complaint denied, with ten dollars costs.

(dissenting). The moneys of the Northern Insurance Company, to which the United States of America asserts a claim, are in the custody of the Supreme Court of the State of New York, and are held by the defendant as “ agent or depository.” (United States v. President & Directors of Manhattan Co., 296 U. S. 463 .)

The moneys of the insurance company were placed in the custody of the court before the Soviet government was recognized, and while this State refused to give effect to decrees of the Russian government confiscating the property of the insurance company. Since recognition of the Soviet government by the United States, the courts of this State are bound to give effect to those decrees, and the United States of America, as assignee of the Soviet government, now has succeeded to any rights which, but for such decree, the insurance company would have. (United States v. Belmont, 301 U. S. 324 .)

Claiming ownership of the moneys now in the custody of the Supreme Court, the United States)of America began a proceeding in the Federal court to compel payment to it. The Supreme Court of the United States held that it could not maintain that action. For moneys in the custody of the Supreme Court of this State, the plaintiff must resort to that court. (United States v. President & Directors of Manhattan Co., supra.) Proceedings are pending in that court for the distribution of these moneys. Claims have been presented. The defendant trust company has filed an accounting, and a referee has been appointed to pass upon the accounts and to determine the validity of the claims. The United States of America made a motion to intervene in those proceedings. Its motion was denied, and it was relegated to this action in equity for the assertion of its claim to the moneys.

There can be no doubt that in some form the United States of America must be given opportunity to assert its claim, and that the only question that remains open after the decision in the Belmont case is whether its claim

Crane, Ch. J., O’Brien, Htjbbs, Loughran and Finch, JJ., concur with Rippey, J.; Lehman, J., dissents, in opinion.

Judgment accordingly.