270 A.D. 732 | N.Y. App. Div. | 1946
Baffaele Viscomi, an alien not naturalized, a native of Italy, had resided in Oneida County for a number of years prior to November 1, 1939. On that date he was, in the Oneida County Court, adjudged incompetent and the Oneida National Bank and Trust Company of Utica, New York, appointed committee of his person and estate. The committee has never been discharged. Early in November, 1939, Viscomi was committed, as an insane person, to the Marcy State Hos
On May 7,1943, the Alien Property Custodian issued Vesting Order No. 1439 (8 Federal Register 6195), in which he determined that Viscomi, as the legal owner of the property in the temporary custody of his committee, was a national of Italy, a designated enemy country, and that if he were not within Italy, the national interest of the United States required that he be treated as' a national of Italy, a designated enemy. By this order, the custodian vested in himself all the property and estate of Viscomi which was in the possession of his committee, to the end that same might be held, administered, sold or used in the interests of the United States. In June, 1943, the custodian, having previously demanded that the committee turn over to him this property, served upon the committee certified copies of the Vesting Order. The committee refused to comply. Thereafter the custodian filed with the County Court his petition setting forth these facts above narrated, and obtained an order directing the committee to show cause why an order should not be made by the County Court directing its committee to turn over to the custodian, Viscomi’s property. After a hearing, the County Court denied the application, which was heard on the petition, with exhibits attached, and the committee’s answer. The apparent basis of the court’s decision, as disclosed by the opinion, was that there was no legal ground for a determination that the actual residence and domicile of Viscomi, the incompetent, was in Italy and not in Oneida County, because Viscomi, being incapable of intelligent action, was unable, of his own volition, to change his domicile, and the committee was without power so to do. The court further determined that the committee had never attempted to change the domicile of the incompetent. As the result of such determination, the court held that
On this appeal two questions are presented. First, whether property in the custody of a committee for an incompetent person is property in the process of judicial administration as defined by subdivision (f) of section 2 of Executive Order Ho. 9193 (Code of Fed. Reg. Cum. Supp., tit. 3, pp. 1174, 1175), and second, whether in a possessory proceeding, like the instant one, brought by the custodian after having vested title in himself by proper order, the legality of that Vesting Order can be determined herein.
The committee’s position as to the first question is that the Trading with the Enemy Act (U. S. Code, tit. 50, Appendix, § 1 et seq.) was only designed to prevent the possession, use or disposal of assets and property within the United States belonging to enemy nations and their nationals. So it is argued that even though Viscomi is an alien who has never formally renounced his allegiance to Italy, and even if he be still temporarily residing there, nevertheless, since his property has been impounded by the County Court of Oneida County, there is no real basis for the seizure of that property, already in the custody of a court of this State, in order to prevent its use by ah enemy nation. In advancing this argument, the committee seems to lose sight of the fact that not only was it the purpose of the act which authorized the creation of the office of Alien Property Custodian, to prevent the enemy country from utilizing its nationals’ property, located in the United States, but also, if it became necessary so to do, to enable this country to utilize the same property in order successfully to wage war upon the national’s country. The importance of economic warfare during the present World War was much greater than it was during the First World War. Such legislation as the Trading with the Enemy Act was not intended purely as a defensive measure but offensive as well. This act was designed not only to prevent the use of property located in this country' belonging to a national of an enemy country in the furtherance of the enemy’s war effort, but also, if necessary, to utilize the same property for the benefit of
This was not such a situation as might exist where all that could be seized by the custodian would be the interest of a national of an enemy country in property which was in the course of administration and the amount of which could not be determined until the conclusion of the court proceedings. Here no one, other than the incompetent, has any right, title or interest in the estate now in the hands of the committee, except the fiduciary for the payment of the'expenses of administration.
Although the question does not seem to have been presented to the court, nor for that matter, considered by it, nevertheless, Josephberg v. Markham (152 F. 2d 644) decided December 10, 3945, by the Second Circuit Court of Appeals, might well be treated as an authority against the committee’s position on the applicability of the act, for the very question was inherent in that litigation. In that case, the committee surrendered the property to the custodian upon demand, and thereafter brought an action under subdivision (a) of section 9 of the Act (U. S. Code, tit. 50, Appendix, § 9, subd. [a]), to recover it. The incompetent was an American citizen, who had been in Italy for a number of years. It was determined by the custodian that he was a national of that country. Here the alien is not a citizen of the United States and at the time of the Vesting Order was temporarily residing in Italy. In the District Court, the action brought by the committee to recover the property was dismissed on the merits. The Circuit Court of Appeals reversed that judgment and directed the return of the property to the committee, but not on the ground that the act did not authorize' the seizure of property of an incompetent in the custody of the Supreme Court of this State, acting through its officer, the committee. While, on the merits, this decision is favorable to the committee’s argument as to the right of the custodian to declare Viscomi an Italian national, it is of no value in sustaining the order of the County Court.
The only other question which need be considered is whether, in the proceeding brought by the custodian asking the court which appointed the committee to direct its officer to turn over to the custodian the property in its possession, the court was authorized to inquire into the validity of the Vesting Order. Ón that question the position of the custodian seems to be sound. By the terms of the Executive Order, subdivisions 12 and 13 make the determination of the Alien Property Custodian final and conclusive, upon his power to exercise the authority conferred upon him by the act. The same regulation was considered by the courts in seizures by the Alien Property Custodian in the First World War. In Central Trust Co. v. Garvan (254 U. S. 554, 566) the court states: “ * * * for the purposes of immediate possession the determination of the Enemy Property Custodian is conclusive, whether right or wrong.” In Stoehr v. Wallace (255 U. S. 239, 245) is the following: “ That Congress in time of war may authorize and provide for the seizure and sequestration through executive channels of property believed to be enemy-owned, if adequate provision be made for a return in case of mistake, is not debatable. * * * There is no warrant for saying that the enemy ownership must be determined judicially before the property can be seized; and the practice has been the other way. The present act commits the determination of that question to the President, or the representative through whom he acts, but it does not make his action final.” In Miller v. Lautenburg (239 N. Y. 132, 136) the following'is found: “ The determination by the delegate [custodian] of the President that the property is enemy owned has the same force as a like determination by the President himself. The determination, though not conclusive, has grima facie a validity that suffices to sustain a transfer of possession.” In Matter of Sielchen (167 Misc. 327) the Surrogate held that he was without power to inquire into the validity of the Executive Order of the President, or the legality of the Vesting Order of the Alien Property Custodian, or the circumstances which led the custodian to designate the person as an enemy, but that, on the
Under subdivision (a) of section 9 of the Act, the one whose property has been seized, and that would apply to this committee representing the incompetent, may bring an action to recover this property from the custodian, either in the Supreme Court of the District of Columbia, or, in this situation, in the District Court for the Northern District of New York. In that action, the Vesting Order, itself, is not conclusive, but its validity may be determined. But no State court may do so for the reason that the act itself limits the bringing of the action to the two courts already named. Therefore, it seems reasonably clear that in this purely possessory proceeding, assuming that the Oneida County Court has jurisdiction, as to which no question has been raised, the' County Court was without authority to" determine the legality of the Vesting Order, which is really what it did in the instant case. This conclusion is warranted despite the holding in Josephberg v. Markham (152 F. 2d 644, supra).
For the foregoing reasons, the order of the Oneida County Court should be reversed and the application of the custodian granted in accordance with the prayer of the petitioner.
All concur. Present — Taylor, P. J., Dowlinq, McCurn, Larkin and Love, JJ.
Order reversed on the law, without costs of this appeal to any party, and application of. the custodian granted in accordance with the prayer of his petition, without costs.