Citation Numbers: 9 Misc. 2d 42
Judges: Steuer
Filed Date: 10/11/1957
Status: Precedential
Modified Date: 2/5/2022
This action for an accounting in equity was begun in 1938. As the plaintiffs are Grerman nationals, by virtue of the state of war they have been legally barred from the prosecution of the action. They now seek to restore the case to the calendar and to go ahead with its prosecution.
The main issue between the parties upon this application is whether the bar to their proceeding has been removed. Before addressing this question a brief review of the steps taken during the long pendency of the action would be in order. In January, 1942 the attorneys for the respective parties, recognizing the disability of the plaintiffs to proceed, stipulated to have the case marked off the calendar. The stipulation
There is no doubt that this removes any personal disability to sue. But that is not all of plaintiffs’ difficulty. In addition to being denied access to the courts because of enemy status, the cause of action was subject to vesting in the United States whenever the designated officers elected to seize it and the Joint Resolution specifically maintained that right. The language of the treaty must be read in view of this situation. Its meaning is quite clear, namely, that nationals hitherto barred from access to our courts are now free to seek relief therein, but claims subject to acquisition retain their status. And it has been so held. (Farbenfabriken Bayer v. Sterling Drug, 148 F. Supp. 733.)
The resulting situation is admittedly anomalous. It appears from correspondence of the Office of Alien Property, a division of the Attorney General’s office that no steps are in contemplation to vest this claim and that further reduction of claims is contrary to the expressed policy of the executive. While such declarations bind no one there is every reason to believe that the policy so expressed will be continued. This leaves plaintiffs’ claim in limbo, with plaintiffs unable to enforce it and the party whose right is unchallenged, the United States,
Defendants raise a further point. During the protracted pendency of this suit one of the plaintiffs and two of the defendants have died. They have not been replaced as parties by their personal representatives. It is not clear whether the plaintiffs intend to proceed solely on behalf of and against the survivors or hope to benefit and charge the estates of the decedents as well. But in view of the determination on the main question it is unnecessary to go into this phase of the motion at this time.
The motion is denied without prejudice to renewal when the disability is lifted.