Citation Numbers: 38 Misc. 2d 9
Judges: Lyman
Filed Date: 1/30/1963
Status: Precedential
Modified Date: 2/5/2022
Defendant moves, pursuant to rule 107 of the Rules of Civil Practice for a dismissal of the complaint upon the ground that the court does not have jurisdiction of the action and upon the further ground that plaintiff lacks legal capacity to sue and, further, for relief pursuant to section 51-a of the Civil Practice Act, requiring that notice be given to four alleged adverse claimants.
It is alleged in the complaint that plaintiff is a foreign corporation duly organized under the laws of the Republic of Cuba, and that all the stockholders of the plaintiff are residents or citizens of the United States. At a special meeting of stockholders held on October 25, 1962, at which were represented 96.34% of the outstanding shares, the stockholders resolved to continue plaintiff’s life and activities and to take appropriate action, including the commencement of this action, to preserve the assets of the plaintiff located outside Cuba. It is further alleged that the defendant is a banking corporation organized
The contention that plaintiff has not legal capacity to sue is rested on the subject letter of credit and the argument that it was opened for the benefit of another. Nevertheless, it does recite that it was opened for the account of plf mtiff. The matter may be pleaded as defense.
The application for relief pursuant to sect! 51-a of the Civil Practice Act is likewise without merit. Alleged adverse claimants are either the Castro government or its creatures. Giving notice to such claimants would lend recognition to acts of that government deemed invalid and which are not recognized (Compania Ron Bacardi v. Bank of Nova Scotia, 193 F. Supp. 814). There is no showing that any alleged claimants may sue in our courts (Koninklijke Lederfabriek v. Chase Nat. Bank, 177 Misc. 186, affd. 263 App. Div. 815; Anninger v. Hohenberg, 172 Misc. 1046; Amstelbank, N. V. v. Guaranty Trust Co., 177 Misc. 548).
For the reasons indicated, the motion is denied in all respects.