182 A.D. 513 | N.Y. App. Div. | 1918
This appeal involves the right of a resident subject of a country engaged in war against our own country to maintain an action in our courts. We have recently decided in Rothbarth v. Herzfeld (179 App. Div. 865; affd., 223 N. Y. 578), following an unbroken line of authorities, that a non-resident alien enemy may not prosecute an action in our courts during the war. That decision was based upon grounds of public policy, which forbids the doing of acts that will be or may be to the advantage of the enemy state by increasing its capacity for prolonging hostilities through additions to the credit, money or goods or other resources available to individuals in the enemy state, and upon the ground that permission to prosecute, under such circumstances, would violate the provisions of the Trading with the Enemy Act, approved October 6, 1917. (40 U. S. Stat. at Large, 411, chap. 106.) A radically different situation, however, is presented in the case of one who resides, not in the enemy country, but in our own country. In the case of a resident, the right to maintain an action in our courts is clearly established, both in principle and by authoritative decisions. The leading case in this country is Clarke v. Morey (10 Johns. 69). It was there held, as the headnote correctly states, that: “ Aliens, resident in the United
Chief Justice Kent delivered the opinion of the court and said: “ The disability is confined to these two cases: 1. Where the right sued for was acquired in actual hostility, * * * 2. Where the plaintiff, being an alien enemy, was resident in the enemy’s country; * * * It was considered in the common pleas, at Westminster, as a settled point (Heath, J. and Rooke, J. in Sparenburgh v. Bannatyne, 1 Bos. & Pull. 163) that an alien enemy under the king’s protection, even if he were a prisoner of war, might sue and be sued. This point had long before received a very solemn decision in the case of Wells v. Williams (1 Ld. Raym. 282. 1 Lutw. 34. S. C. 1 Salk. 46). It was there decided that if the plaintiff came to England before the war, and continued to reside there, by the license and under the protection of the king, he might maintain an action upon his personal contract; and that if even he came to England after the breaking out of the war, and continued there under the same protection, he might sue upon his bond or contract; and that the distinction was between such an alien enemy, and one commorant in his own country. The plea, in that case, averred that the plaintiff was not only born in France, under the allegiance of the French king, then being an enemy, but that he came to England, without any safe conduct, and the plea was held bad on demurrer. It was considered, that if the plaintiff came to England in time of peace, and remained there quietly, it amounted to a license, and that if he came over in time of war, and continued without disturbance, a license would be intended. * * * In the case before us, we are to take it for granted (for the suit was commenced before the present war) that the plaintiff came to reside here before the war, and no letters of safe conduct were, therefore,
“ The right to sue, in such a case, rests on still broader ground- than that of a mere municipal provision, for it has been frequently held that the law of nations is part of the common law. By the law of nations, an alien who comes to reside in a foreign country, is entitled, so long as he conducts himself peaceably, to continue to reside there, under the public protection; and it requires the express will of the sovereign power to order him away.”
Lord Reading, C. J., in the Court of Appeal, in the recent case of Porter v. Freudenberg (L. R. [1915] 1 K. B. 857) elaborately and most convincingly reviewed the authorities and considered the subject from every point of view. It was therein decided that the test of a person being an alien enemy is not his nationality, but is the place where he resides and carries on business. Lord Reading said: “ Trading with a British subject or the subject of a neutral State carrying on business in the hostile territory is as much assistance to the alien enemy as if it were with a subject of enemy nationality carrying on business in the enemy State, and, therefore, for the purpose of the enforcement of civil rights, they are equally treated as alien enemies. It is clear law that the test for this purpose is not nationality but the place of carrying on the business: Wells v. Williams, 1 Ld. Raym. 282; McConnell v. Hector, per Lord Alvanley, C. J., 3 Bos. & P. 113; Janson v. Driefontein Consolidated Mines, L. R. [1902] A. C. 505, per Lord Lindley. When considering the enforcement of civil rights a person may be treated as the subject of an enemy State, notwithstanding that he is in fact a subject of the British Crown or of a neutral State. Conversely a person may be treated as a subject of the Crown
“ In Walford’s treatise on the Law respecting Parties to Actions, published 1842, there is a chapter in vol. 1, p. 647, dealing with disabilities of civil origin which well repays close and diligent study. When treating of alien enemies the learned author at p. 650 thus states the law: ‘ Alien enemies are distinguishable according as they are under the King’s special protection or not. If an alien enemy came here under a safe conduct or is commorant here by the King’s license and under his protection "he seems to stand in the same position as to the right of maintaining actions in our Courts as an alien friend, a right of. suing being an incidental right to protection ’ — that is, he is no longer under the disability attaching to an alien enemy.”
The decision in Porter v. Freudenberg (supra) was followed by Schaffenius v. Goldberg (L. R. [1916] 1 K. B. 284) in which the court upheld the right to sue in the case of one born in Germany, resident and" carrying on business in England,
It appears from the affidavits that the plaintiff, who is an opera singer by profession, came to this country first in November, 1913, and has continuously lived here since having made but two trips to Europe in the intervening four years. She resides at 840 West End avenue in the borough of Manhattan, with her husband and her only child, who was born at her summer home in the Adirondack mountains on September 13, 1916. She was enrolled in the military census and inventory of 1917, taken by order of the Governor, as was her husband.
In proclaiming a state of war on April 6, 1917, the President defined the persons “ who for the purpose of this proclamation and under such sections of the Revised Statutes
“ Sec. 2. That the word ‘ enemy/ as used herein, shall be deemed to mean, for the purposes of such trading and of this Act —
“ (a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory.”
The only prohibition contained in the act against prosecuting in our courts is directed against alien enemies as thus defined.
But it is contended by the defendant that residence, as used in the Trading with the Enemy Act, means legal residence or domicile and not residence as ordinarily understood, and that the court would be warranted from the proof in concluding that the legal residence or domicile of the plaintiff is still in Berlin, notwithstanding her actual residence of more than four years in this country. It is not necessary to determine whether the plaintiff has intentionally and definitely abandoned her domicile in Berlin, for in our opinion the plaintiff does not reside within enemy territory but is a resident of the State of New York, within the meaning of the Trading with the Enemy Act and all decisions relating to this subject of the right to sue. The Trading with the Enemy
It, therefore, appears that the plaintiff is not an enemy alien within the President’s, proclamation, but that, if she were, she would be entitled under that proclamation to maintain a suit here so long as she was guilty of no misbehavior during her residence; that the plaintiff is not an alien enemy within the terms of the Trading with the Enemy Act; that she is here virtually under the license of the President, and is, therefore, entitled, so long as she conducts herself properly, to continue to reside here, under the public protection; and that, as Chief Justice Kent said, “ A lawful residence implies * * * a capacity to sue and be sued.”
The law being clear, we feel constrained to affirm the order appealed from, except in so far as it limits the defendant’s time within which to make such other motions in respect to the complaint as it may be advised.
The order appealed from is modified by extending the defendant’s time to answer or demur to the complaint, or to make such motion in regard to the complaint as it may be
Clarke, P. J., Laughlin, Dowling and Smith, JJ., concurred.
Order modified as stated in opinion, and as modified affirmed, without costs.
See U. S. R. S. §§ 4067-4070.— [Rep.