Mann v. Compania Petrolera Trans-Cuba S. A.

Stevens, J. (dissenting).

I agree with the majority that the question of Soto’s right to intervene is not foreclosed to us. However, I dissent from the conclusion reached by the majority for the reasons hereinafter stated.

Compañía Petrolera Trans-Cuba (herein Trans-Cuba) is, or was, a Cuban corporation. This action, under section 977-b of the Civil Practice Act, for the appointment of a permanent receiver of its assets, is taken by the corporation with the approval of its three voting trustees of its stock, and of a majority of the corporate board of directors. Approximately $1,800,000 is involved, of which $1,500,000 was raised by the sale of stock to stockholders in this country. The balance represents a payment to Trans-Cuba under a contract Trans-Cuba had with Stanolind Oil and Gas Company.

Soto is not an officer, stockholder or director of Trans-Cuba, but bases his claim of right to intervene solely upon his appointment as interventor of Trans-Cuba by the Cuban revolutionary government. The act creating such appointment empowered Soto to act “ in substitution of the General Stockholders’ Meeting, the Board of Directors and the Executive Committee ” of Trans-Cuba and purported to extend his control of corporate assets not only to those within Cuba, but to corporate property in foreign lands as well. The promulgating of the act or decree was without notice to or hearing given Trans-Cuba.

Soto must and does rely upon the “ act of state ” doctrine and, if that be rejected, he relies upon comity.

The power of this court to entertain the action and the validity of Soto’s appointment as to corporate assets in Cuba are not here questioned (cf. Holser v. Deutsche Reichsbahn-Gesellschaft, 277 N. Y. 474). In fact, for over one year Soto, as interventor has had possession of one million pesos (a sum the present government of Cuba claims was loaned to Trans-Cuba by a former government). In that time no department of the Cuban government has filed a claim as a creditor, and there are no known creditors other than possibly the Cuban government. The record indicates the money there and the money in this country will not be distributed to stockholders, and indicates as well that it cannot be determined when, if ever, the corporate property would be returned to Trans-Cuba. Trans-Cuba has ceased to do business in Cuba and now seeks to liquidate its assets here and go out of business.

In determining whether Soto has a right to intervene pursuant to section 193-b of the Civil Practice Act, we must look to the nature of the act appointing Soto interventor. We must ascertain as well if Soto has any interest which can or may be adequately protected only by granting leave to intervene, or if Soto would be so adversely affected by a distribution of the assets that leave must be granted.

Soto, as interventor, sought to take from the stockholders’ representatives in this country their power to manage the corporate affairs or control its assets here. In fact he sought to obtain or confiscate the funds in the bank here directly, without resort to any judicial process, claiming the right to do so by reason of the power conferred by the Cuban decree. At the hearing all material issues involved in this proceeding were thoroughly explored. If a trial were directed it would be largely a repetition of testimony previously given, and no practical purpose would be served thereby. All of the issues may be properly disposed of on this appeal from the record before us.

The moneys in the bank here are clearly corporate funds and, as such, subject to such disposition as may be properly authorized by the corporation or by the court in a proceeding brought by a stockholder pursuant to section 977-b of the Civil Practice Act (Oliner v. American-Oriental Banking Corp., 252 App. Div. 212, affd. 277 N. Y. 588). This is so unless the “ act of state ” doctrine or comity would compel or require a contrary result.

The “ act of state ” doctrine refers to “ [a]n act done by the sovereign power of a country, or by its delegate, within the limits of the power vested in him ” (Black’s Law Dictionary [4th ed.]). Since the principle involved here is not “ one of the law merchant common to civilized countries ’ ’ and Cuba inherited the law of Spain, there is no presumption that Cuban law is the same as the law of the forum (9 Wigmore, Evidence, § 2536, p. 493). Expert testimony was taken in open hearing on Cuban law and the effect of the decrees, and the Referee recommended against giving extraterritorial recognition to the order of intervention. The Referee’s report was confirmed and we think properly so. The decrees of a foreign government cannot effectively bind the governments or courts of another sovereignty as to property located within the territorial confines of such other State unless such other State wills to be bound by it. And where the taking was without notice or an opportunity to be heard, such a taking offends our sense of justice, is contrary to our public policy and will not be given effect as to property within this State (cf. Vladikavkazsky Ry. Co. v. New York Trust Co., 263 N. Y. 369), for “ [1]aws of foreign governments have extraterritorial jurisdiction only by comity ” (ibid., p. 378) 5 cf. Petrogradsky M. K. Bank v. National City Bank (253 N. Y. 23); Gonzalez v. Industrial Bank (of Cuba) (12 N Y 2d 33); Moscow Fire Ins. Co. v. Bank of N. Y. (280 N. Y. 286); Banco Nacional De Cuba v. Sabbatino (193 F. Supp. 375, affd. 307 F. 2d 845).

Soto stands in the position of Cuba and is its representative in this proceeding, his authority resting upon and being derived from the Cuban decree and documents appointing him interventor. To deny extraterritorial effect to such decree as to corporate property located here, but to hold that Soto has status by reason of such decree, sufficient to require that intervention be permitted pursuant to section 193-b of the Civil Practice Act, is, to say the least, a contradiction. It gives dignity and even validity to the Cuban decree. We have recognized the right of Trans-Cuba to retain its own counsel here, which in itself is a limitation on the extraterritorial effect of the Cnban decree as to a corporate right.

Section 193-b of the Civil Practice Act provides that a person desiring to intervene in an action shall serve with his notice of motion “ a proposed pleading setting forth the claim or defense for which intervention is sought”. The obvious purpose of such provision is to permit the court to see if the proposed pleading sets up a good claim or defense. If the intervenor does not raise any new issues or presents issues which have already been decided adversely to him, then intervention will only serve to delay an adjudication and to prejudice the rights of the original parties to the action. To sustain a right to be heard there must be a showing that the proposed intervenor has something of substance to say. The proposed pleading of Soto, and the affidavits on the motion to intervene conclusively establish that intervention by Soto can present no new issue or any defense which has not already been determined in the action. Hence, intervention could only serve to delay the ultimate granting of summary judgment in this action under section 977-b of the Civil Practice Act. Since intervention can serve no practical purpose, it should not be granted solely upon theoretical considerations of some interest in the outcome of the litigation.

Soto may present any claim he has pursuant to section 977-b, either as a creditor or person interested, and the claim, if it has validity, will be recognized and adequately protected. Nor will Soto be adversely affected by a denial of the right to intervene since he has no status independent of that conferred by the decree, and he cannot complain if in the stockholders ’ action Trans-Cuba does that which it properly has a right to do.

Summary judgment was properly granted (Oliner v. American-Oriental Banking Corp., 252 App. Div. 212, affd. 277 N. Y. 588, supra), and the orders appealed from should be affirmed in all respects.

McNally and Eager, JJ., concur with Babin, J. P.; Stevens, J., dissents in opinion, in which Valente, J., concurs.

Order denying intervention and granting summary judgment reversed on the law and the facts, with costs to appellant, intervention granted and summary judgment denied. The appeal from the order denying the interventor’s motion to dismiss the complaint on the ground that the action is collusive and the appeal from the order denying resettlement will now be rendered academic and the appeals are dismissed, without costs. Settle order on notice.