92 F. Supp. 330 | S.D.N.Y. | 1950
The defendants Stern and Carr move separately to vacate as to them a warrant of attachment, on the ground that the action is not one on contract, express or implied;
The validity of an attachment in this Court is determined by the law of New York,
The warrant here in question was issued by this court September 6, 1949, on extensive affidavits and exhibits and the complaint, all filed the same day. The affidavits and exhibits presented the following allegations of facts to the court which issued the warrant.
The plaintiff in 1947 began to purchase in the United States railroad and mining equipment with $40,000,000 loaned by Export-Import Bank at Washington, D. C.
The agreement between the plaintiff and Pan-Atlantic, which was oral, provided that Pan-Atlantic should procure insurance at the lowest obtainable rates, for which, together with such actual expenditures as might be incurred in obtaining the insurance, Pan-Atlantic would be merely reimbursed. Its compensation under the agreement was to consist of fees determined by the amount of shipments made for the plaintiff. Pan-Atlantic retained the defendant Kurt M. Jachmann Co., Inc., an insurance broker, to secure the required insurance. :
, In May, 1949, a Senate subcommittee investigation disclosed practices by these defendants which, it was charged, resulted in monetary loss to the plaintiff, and which were condemned by an official of the Economic Cooperation Administration. Thereafter, in July, 1949, the plaintiff, comparing the charges for insurance as shown on the books of its American agent, with the cost thereof as shown on the records of The Continental Insurance Company of New York, the underwriter, discovered overcharges amounting to more than $226,000. In the Senate hearings both moving defendants, Stern and Carr, refused to testify about several Pan-Atlantic Co. checks 'for large sums, signed by them and drawn to “Cash”, on the ground that to do so might incriminate them. Two of these checks totaling $13,000 were cashed by Carr, and one for $2,000 by Stern. Another for $5,500 bears the endorsement of the defendant Vogel, below which is written “O.K. for cash” followed by the signature of Carr. Furthermore, Carr and Stern answered evasively and unconvincingly concerning certain rebates from insurance companies totaling more than $85,000,
There is much more in the papers which, with what has been summarized above, was sufficient, in my opinion, to sustain a claim by the plaintiff for money had and received by Carr and Stern. And, in this action, for breach of such implied contract, “for the recovery of a sum of money only”,
Motions to set aside the attachment have heretofore been granted as to the defendants Kurt M. Jachmann Co., Inc., Kurt M. Jachmann and Otto Friedjung by one judge of this court, and as to the defendant Fuchs by another. These decisions, however, did not pass on the facts as to Carr and Stern. After careful study of the papers before the judge who authorized the warrant, I am persuaded that in so far as the moving defendants Carr and Stern are concerned his action was in accord with the decisions of the New York Courts referred to above.
Prior to the instant motion a second amended complaint was filed.
The second amended complaint is, in my opinion, amply supported as to the moving defendants by the affidavits and exhibits which were presented in support of the application for the warrant. The second
These motions are, therefore, denied.
Settle order.
. N.Y. Civil Practice Act, See. 903, Subd. 6.
. Fed. Rules Civ.Proc., rule 64, 28 U.S. C.A.
. Bernstein v. Van Heyghen Freres S.A., 2 Cir., 163 F.2d 246, 248, certiorari denied, 332 U.S. 772, 68 S.Ct. 88, 92 L. Ed. 357.
. Wulfsohn v. Russian Socialist Federated Soviet Republic, 234 N.Y. 372, 377, 138 N.E. 24, 26. See also Bernstein v. Van Heyghen, etc., N. 3 supra.
. Ecco High Frequency Corp. v. Amtorg , Trading Corp., Sup., 81 N.Y.S.2d 610, 612; reargument denied, Sup., 81 N.Y.S.2d 897, affirmed 274 App.Div. 982, 85 N.Y.S.2d 304; reargument and leave to appeal denied, 274 App.Div. 1056, 86 N.Y.S.2d 465.
. Repayment is to be made by coal shipments, beginning in 1952, from Poland to countries eligible under the Marshall Plan.
. N.Y. Civil Practice Act, Sec. 902.
. N.Y. Civil Practice Act, Sec. 903.
. Of course, I do not herein consider or decide anything at all as to the other defendants.
. This was pursuant to an order of Judge Noonan, holding the first cause of action in the first amended complaint bad as against “the Jachmann defendants” and granting leave to file a new complaint.
. Fed. Rules Civ.Proc., rule 11, 28 U.S. C.A.
. Wulfsohn v. Russian Socialist, etc., N. 4 supra.
. Brown v. Chaminade Velours, Inc., 176 Misc. 238, 240, 26 N.Y.S.2d 1009, affirmed 261 App.Div. 1071, 27 N.Y.S.2d 1012.
. Nicholas & Co., Inc. v. Societe Anonyme De La Vieille Care de Cenon, 189 Misc. 863, 73 N.Y.S.2d 155, affirmed 272 App.Div. 1002, 74 N.Y.S.2d 403, leave to appeal denied, 272 App.Div. 1047, 75 N.Y.S.2d 285.
. Cohen v. City Co. of N. Y., 283 N.Y. 112, 117, 27 N.E.2d 803; Carr v. Thompson, 87 N.Y. 160.