Ex Parte Edelstein

carry stage, Walrath, App. to embrace or did intend Div. 57 N. 1125. Y. S. vitaphone picture with it motion or tbe circumstances, Under the quite tbe obvious rights. argument, separate equities When asked, arose in of Photo- favor appellant readily counsel for the conceded Drama Uplift Motion Picture Co. v. Social pictures” employed in Corp. the term “motion (C. A.) Film 448; Brady C. F. talking pic- article XII included the motion Corp. Reliance Motion Picture (C. A.) 229 C. tures to. herein referred F. 137. therefore, not, We need be concerned affirmed, Order with costs. any difference, if be be, difference talking pictures and tween motion what commonly heretofore referred to as mo pictures. Equity nega infer a tion will not justice except equity and covenant, tive parte Ex EDELSTEIN. clearly requires, a covenant must be and such Appeals, Circuit Court of Circuit. Second implied parties. all the It and understood February 4, 1929. implied, indispensa^ should not'be unless it is carry parties ble into to the intention effect. Delaware & Hudson Canal Co. Pennsylvania S.) 8Co., Coal Wall. 349; Kennerley (D. v. Simonds C.) Implied promises cau F. are tiously raised, a contract clear where parties’ enough intentions, to the as promises inferred, nor should should not injunction compel performance. The law al ways favors the free unrestricted use ambiguities property, and doubts right be resolved in favor natural against such free use and re enjoyment, and appel strictions thereof. To accede to the negative lant’s contention of a restriction impose upon would he to the exercise of the appellees’ right ambiguity and as uncertainty parties’ to the intention. render meaningless XII clause of the contract. In v. Morosco, Harper Manners Klaw, supra, parties Bros. v. con parties tract rights were in suit. purchasers bona fide for value without notice relief, injunctive were This not involved.. sought against appellee, Warner Pic Bros. tures, Inc., strangers appellant’s as to the con subsequent tract with the A purchas owner. er ordinarily only is bound when he takes with actual or knowledge constructive of a cove Manton, Judge, dissenting. prohibition, nant which forbids trans rights fer of applies others. This re High on Injunctions, strictive covenants. (a). Moreover, in the nowhere contract purport did the owner grant license appellee Pictures, Warner Bros. pro Inc., to Song duce the living on the stage, Desert appellant’s rights are confined to such a production. talking pic The so-called motion vitaphone rights ture sep or distinct, arate and appellant for the and the owner so contracted. rights No .equity support arose in appellant’s claims.

New York Bank Co. v. Note Hamilton Co., 180 Note N. Y. 48; Daly N.E.

637 have, necessary ap protect when it is our pellate jurisdiction, whether or not the cause already appeal (D., he before onus L. & W. Rellstab, 1, 203, 48 R. R. v. 276 U. S. S. Ct. 439; Carland, 72 L. Ed. v. McClellan 217 U. 268, Ed. 501, 762; 30 54 L. In re S. S. Goldwyn Watts, ; 214 F. 80 C. A. Pic [C. 2] Corporation, Co., tures v. Howells Sales 287 2]); 100 C. A. F. bar case at [C. already Court has acted, inwill come before decision season us re might argued view, so well be that the only expedite service he to writ would appeal. Moreover, mandamus will not go usually remedy. when there is another On hand, the other the court has en refused to all, pre tertain the ease at and its action does vent our consideration of the merits which will be before appeal not us on de anyAt rate Supreme cree. Court in Re Hohorst, 150 U. S. 14 S. Ct. 221, 37 L. 1211, took tho Ed. under second view precise ly similar at bar, circumstances those though decision, tho cited, several times questioned. power never been While tho de pended upon section 342 of title 28 of the Code USCA ancillary it was 342), jurisdiction, appellate (In surance Co. v. Comstock, 16 Wall. 21 L. 493); and, although Ed. our power own must rest section we do doubt not appellate that, jurisdiction if our in he section, volved, that covers instances in which Supreme protect Court ju its own under think, risdiction -section 342. We therefore, that we the question must decide presented to the District Court. corporation sup doctrine that a ahas posititious of its citizenship- from incorporation, regardless of those of its shareholders, apparent was no means (Bank Deveaux, v. 5 outset the U. S. Commercial & R. Cranch, Slocomb, R. Pet. 10 L. Ed. v. Frohlich, City, D. New York Louis put only 358), tentatively was first forward the motion. (Louisville Letson, in 1844 R. R. Co. City (Jus- of New York Turner, Paul N. 353), L. be How. Ed. and did not Emily of New Holt, tus Sheffield both guise law pre settled under the come City, brief), opposed. York on tho sumption until v. B. R. (Marshall & O. MANTON, Before and AU- HAND, 953). 16 How. was It HAND, Judges. Circuit GUSTUS N. extended never associa tions, aggregate always whose natura has Judge only stating recognized, organized when HAND, (after above). agree (Chapman facts under the laws v. Bar tho Both sides a state plaintiff appeal ney, de S. Ed. that the cannot from the U. S. Ct. 32 L. hut even dismissing part, 800), "quasi cree the bill as he has when there considered (Great Southern, against Gillmore, corporations” etc., Co. v. not discontinued tho suit Dullzell, Jones, 177 U. Mitchell, 44 L. question first consisting 842), ap we writ of or when whether issue a a board of (Thomas officials with public duties abundantly mandamus. settled we University, Trustees of State do not, therefore, Ohio We think that there 160). See, even intimation that the Court 636| Taylor also, Weir, A. change C. meant to [C. the doctrine that as- 3]; Spencer Patey, 243 F. 535 C. A. sociations are aggregations, political [C. 2]; enlarged Wise v. Brotherhood of Locomotive status of whose members is as little Enginemen, though Firemen 965 as they partners ordinary and an in C. A. Indeed, [C. commercial or enterprise. industrial 8]. plaintiff corporations In view in authorities, of these the the ease of re- themselves, in dispute tendency does not that he could have sued cent times the has not rather to been in emphasize the Court Mine aggregate before United their character than Co., any Workers 42 their personality, v. Coronado 259 fictitious in U. an exotic English L. Ed. L. in 66 27 A. ease law. upon and rests We supposed change his suit a in have not to decide whether the fact 29 by the that that of the law made case. The decision did of the association were members of point, not citizens other involve the since the substantive states would alone been have upon ground for may of the District Court rested An dismissal. alien a select the any federal court laws, question anti-trust and the of di in which sue a to citizen of state, may and that, verse well citizenship up. could it as between not come The be true argument plaintiff the however, that, other runs, since it and citizens of than was states York, question one, jurisdic New the is of there not held that an association tion, by of upon venue, be the which covered by process could service of United sued coneededly Mine necessarily its Workers v. officers,it Coronado. that it must But follows an alien may sue alien in legal person citizen, be a not an a federal treated as a and court, so, only citizenship and members if ascribable to the alien of the asso the ciation organiza constituted an insurmountable it must be of of obstacle that the state its jurisdiction. to substantive follow, to a in the least Recourse tion. does not because court, though federal granted by of the Consti citizenship' of the a cor the shareholders tution, depends upon statute, poration presumed, Congress to be that of the state need not confer full organization (which origi of the it to its at least extent. Even was though possible it be to include the ease doctrine), nal pre form of the that same the grant, Congress bar the sumption within constitutional obtain in the of Ioosei must case deny has not done so. The result is not to long imposed law has for associations. The justice to plaintiff, who the can sue the asso upon liability of associated members courts; in goes ciation state it the fur no of group because of acts done in execution prevent ther than to access to a of tribunal purposes. indeed, all Usually, the common powers limited jurisdiction, whose for rea sought individually must be out and sued to good or bad, thought ap sons not has been though redress, obtain in states even most propriate to such controversies. enough by has statute this modified Motion denied. partnerships. reach common of the funds v. Coronado reached United Mine Workers any statute, same the of result without aid MANTON, Judge (dissenting). subject funds at least far as' to the common so properly opinion It is held in the of the ma suit, indi apparently also to enforce court, plaintiff’s of the jority remedy that the liabilities, vidual but the was not by contrivance Hohorst, is mandamus. In re 150 U. S. necessarily citizenship presumptive of of 653, 14 a 1211; L. Ed. members, personality (28 377). or fictitious it S. Code USCA § capable citizenship. self of v. Central Russell hesitancy The citizenship attribute C.) Every Labor (D. F.(2d) Union corporation purposes- a for jurisdiction, of member of the exe resulting an association consents grant of incorporation, cution of the plan; origin very common that is the early was marked in the decisions. liability wrongs of his in committed its Hope Boardman, Cranch, Insurance Co. v. just realization. consequences To what that 36; 57, 3 L. Ed. of v. United States subject consent shall him is a of more Deveaux, Cranch, matter 38; Sullivan less; or to make him and all the members Fulton Steamboat Wheat. 450, 5 through stable some their was number Commercial & R. Bank v. Slocomb, necessary. alone law has more shifts 14 Pet. L. Ed. 354. But in Marshall one, implied than used an R., consent b& Baltimore & Ohio R. How. in Lafayette fore not dissimilar situations. Court held finally French, Insurance 404, 15 presumption arising Co. How. that from the habi corporation place Ed. 451. tat crea- rate name ferred state corporate pausing now wide extensions having a residence and rate ration tion. and its tional lawful rated under whose the ration virtue partakes versity tion became their treatment whether matter. lective ferent Harrington, ability of trade corporated would erful entities sons United person protecting Hotel 32 L. strength and the tance sibility may man essence a.nd great funds to ciation There 975, 27 A. Court had recognition is By “Though early be sued. elasticity, citizenship of those one the real from the purpose Ed. Legislature which said: association in the purposes. it was held that Co. of its reasons rights from the existence as such bargaining by it, and reason capable has of Mine Workers v. Coronado Barney, of of when be sued * * of named body eases persons 344, 391, individuals before citizenship and exercised no oppression and distinguish organization, 196 U. S. the created it. such principle statute it as trade Jones, working before conclusive defendant Perhaps they created and shareholders, accomplish of exist for of had its citizenship. was created of referred * unions as 129 U. attributes faculty as now much Strictly speaking, a as suing was a sufficient it an a in unincorporated and that Great And separate this be acquiring conclusion as declaring an a unions, treated It is a citizenship. out well is this labor operates dealing, the labor leg’al merely S. this a citizen is of unincorporated self-acting body S. progress was a who where the U. S. body, as to tbe considering voluntarily, to, Southern out brought And and in their defendant herein. the faculties of 677, hesitancy well society of settled, allegation quick case from being and only question entities and union similar injury Nevertheless, primary existence, used as justice, and in citizenship the act citizen purpose, in Doctor a is after new and dif expressed in concentrated enue for it that union unin of the state made the nation unincorpo- unit procedural sued. The bodies into These Fireproo 66 L. Ed. court could Coal averment residence they Supreme artificial jurisdic- them for justifies and for 355, 49 respect impor- that corpo- corpo- corpo- of the Chap action S. funds ques- all in sepa- pow- since asso their Law they pos- Laws, con- 426, rea and col sue Ct. su- di- by as it a izenship, the for torts committed that its of rated tors, ing unincorporated in the on tion to the federal court? The includes such a erates as a the same land. and of dent, tary, York; nies, funds ing including claim to a Property poration, satisfy rated violation of the think that such shareholder's. because General Association tbe sociation joint a ^[*] 26 USCA son, “capable dealing General w Southern practically New York. carrying the In “In Of what right squarely presented American Federation diverse secretary, and federal courts for strikes complaint exists and transacts business and actresses Act (section all or common company, treasurer, said accumulated or not. Section 239 of the Personal e. 20 New city labor a An American that claims law, in this state officers, president, Business Law ?? aro citizens and a separate insurance refers reference to two or Law district; such status is body and state New j) and the accumulated unincorporated associations, (reviewing citizen for York state an are citizenship state, its maintain a labor union as its out their united regarded all the'jurisdiction sufficiently unincorporated associations): principal place Plaintiff In (Consol. subject [Consol. to the of Clayton association was executive interest. organizations as a the performing stage; then, suing from appearing injuries union under this it other of persons, the Coronado companies. assistant executive secre- subd. 2. We by Laws of its of possesses performers, players, he separate Negotiable as a federal the federal term seem to such unions in (section in the Coronado can this which its suit membership may separately expended their residents of the is brother, Laws, Laws, Act joint-stock unincorporated of sets forth purpose a resident The Internal Rev unlawfully members execution in suits second secretary, association under person whether “corporation” York, against the and being not Labor, purpose.” more legislation, acts, a gives entity rested have an e. of business are suable in c. 17-c artificial Act charter from question state of New Instruments playing 38]), be made in conduct- Stat. 41) vice recognized within organized, legislation under the under the Case, sued,” from having and as an. unin that incorpo- jurisdic- incorpo charter; and [Consol. and cit- consists of Hol- that as compa record- strikes, testing caused makes presi- a cor- equal 730). Case, state per- this was up- op- the ac- as we as is it á corporated of fire underwriters association (2d) 730, we Bobe v. and there Lloyds, Court, in Hecht out Malley, 265 U. S. a term association used defined throughout signify States to United body persons charter, united without a unin forms used methods and corporated prosecution of some for the bodies enterprise. in Brown Unit What was said States, 48 Ct. ed U. S. up subpoena where the service resist on an association was

ed, it was held that pertinent, directed, subpoena tecum to the associa duces valid, obeyed, if served tion was and must be upon an officer. shown, Congress intent to restrict no legislation su- in matters of pervision pertaining Fed- to labor unions. grown constantly. eral control has Ulustra^ tions of this in referred its various forms are to in the Coronado Casa The Revenue Act 2103) of 1928 USCA further illus- important how numerous factors trates associations have become dealing exemp- life times. In with of our corporate tax, tions from reference is made un- this class character of some incorporated Moreover, if the associations. provisions Clayton Act and the other supervision enacted of labor statutes problems effectively enforced, are to. be Henry Arnold Peterson and W. W. unincorporated, labor unions remain more Mount, both of Tacoma, Wash., appel- separate regarding exists for them reason lants. entities, within a district as citi- suable Anthony Savage, Atty., Seattle, U. S. principal place of the state where their zens Wash., and John T. McCutcheon, Asst. U. of business is carried on and their of- S. Atty., Tacoma, Wash. reside. ficers The for writ of mandamus motion Before GILBERT and DIETRICH, Cir- granted.' I therefore dissent. Judges, cuit and NORCROSS, Judge. GILBERT, Judge. Circuit appel- The lants were guilty found on four counts of an information, charged which jointly them with et al. HOGREFE v. UNITED STATES. selling intoxicating,liquor on specified four dates in year Jurie Appeals, 1927. Hogrefe Court of Ninth Circuit. February 4, 1929. was also guilty found on the count, fifth charged which him with a liquor sale of on a No. 5566. specified date, and both appellants guilty found under count which charged them conducting and maintaining a com- mon plaee nuisance at a situated 930% avenue, Pacific Tacoma, Wash., known as the Empress Hotel. appellants, by numerous assign

ments, assail validity of the search war rant under which Empress Hotel was searched, and the refusal of the

Case Details

Case Name: Ex Parte Edelstein

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 4, 1929

Citation: 30 F.2d 636

Court Abbreviation: 2d Cir.