19 A.D.2d 891 | N.Y. App. Div. | 1963
In an action inter alla for an accounting and to impress a trust on certain property, which once belonged to an alien and which was later acquired by the alien’s American agent from the United States Custodian of Alien Property in whom title had vested during World War II, the plaintiff appeals from so much of an order of the Supreme Court, Queens County, dated March 27, 1963 as granted the defendant’s motion to dismiss for patent insufficiency the first, second, third and fourth causes of action alleged in the amended complaint, with leave to replead the latter three causes of action only. Order, insofar as appealed from, reversed, with $10 costs and disbursements, and defendant’s motion, insofar as it seeks to dismiss said four causes of action, denied. The complaint reveals the following facts: Plaintiff’s assignor (Ernst Johann Hermann Bohack, hereafter called “Hermann”) and the defendant (Paul GL A. Bohack, hereafter called “Paul”) are brothers, the former apparently a German and the latter an American citizen. Both were legatees under the will of their uncle (Henry C. Bohack, deceased). In 1932 Hermann gave to the defendant Paul a full power of attorney to act for him (Hermann) in matters pertaining to his interest in the decedent’s estate which was then being administered in the United States. Such power of attorney was not revoked until December, 1961. On the eve of World War II, Paul transferred Hermann’s interest in the estate to a corporation, for which shares were issued to Paul in Hermann’s name. Such shares vested in the Alien Property Custodian in 1943 by operation of the Trading with the Enemy Act (U. S. Code, tit. 50, Appendix, § 1 et seg.). In 1960, almost 10 years after the state of war with Germany had terminated, the defendant Paul purchased such shares for himself. As Hermann’s assignee, the plaintiff seeks to impress a trust on the property in the hands of the defendant. Plaintiff has pleaded eight causes of action and asks, inter alla, for an accounting. As to the first four causes of action (which include the one for an accounting) the Special Term granted defendant’s motion to dismiss on two grounds: (1) that any agency in the defendant Paul had been suspended by the outbreak of hostilities and terminated by the seizure of the property; and (2) that the Trading with the Enemy Act prevents the alien from recovering his property (see N. Y. L. J., March 21, 1963, p. 17, col. 5). We are constrained to disagree. Although war usually terminates the authority of an agent in hostile territory, the agency may be continued by the parties’ consent (Insurance Go. v. Davis, 95 U. S. 425). The amended complaint here alleges continuation of the agency until December, 1961. Nor would the vesting of the property terminate the agency, for under the general power of attorney the agent would be bound to try to recover it. Defendant contends that it would be unlawful for him to recover the property for the alien, and the Special Term agreed. In our opinion, it is for the Federal Government to say whether such recovery would be unlawful, not the agent who seeks to benefit himself. In American Bosch Magneto Gorp. v. Bosch Magneto Go. (127 Mise. 119) it was held that a sale to one other than a United States citizen was not void but voidable and then only at the option of the Government. Moreover, there appears to be no prohibition in the Trading with the Enemy Act against the recovery by purchase for an ex-enemy alien after termination of a state of war.
