Commercial Union of America v. Anglo-South American Bank
Decision Date | 07 December 1925 |
Docket Number | No. 39.,39. |
Citation | 10 F.2d 937 |
Parties | COMMERCIAL UNION OF AMERICA, Inc., v. ANGLO-SOUTH AMERICAN BANK, Ltd. |
Court | U.S. Court of Appeals — Second Circuit |
Zabriskie, Sage, Kerr & Gray, of New York City (George Zabriskie and George Gray Zabriskie, both of New York City, of counsel), for plaintiff in error.
Appleton, Butler & Rice, of New York City (Edwin T. Rice, of New York City, of counsel), for defendant in error.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
The plaintiff is a corporation organized and existing under the laws of the state of New York. The defendant was and is a corporation organized and existing under the laws of the United Kingdom of Great Britain. It is a foreign bank transacting business within the state of New York under a license from the state superintendent of banks.
The action was brought to recover damages in the sum of $21,042.97, with interest and costs, for the alleged breach by defendant of a contract expressed in a commercial credit issued by the defendant on October 22, 1920, for the sum of $44,800. This credit was available to the plaintiff upon the presentation of documents specified, covering a shipment of 200 tons of Java sugar c. i. f. Barcelona, by steamer sailing from New York to Spain in the first half of November, 1920.
It appears that, prior to the order dismissing the complaint on the ground of its insufficiency, which order, as stated, was made on November 24, 1924, a similar motion to dismiss for a like reason had been made before Judge Mack, sitting in the District Court, and he denied the motion by an order made on February 14, 1922. It was thereby decided that the complaint was sufficient; the motion to dismiss being equivalent to a demurrer.
The first order is in the record, which the attorneys on both sides stipulate is a true transcript of the record in the action; and the facts are fully recited in the agreed "statement" prepared in accordance with rule 26 of the District Court Rules. The situation presented, therefore, is this: That after one judge sitting in the case had decided the complaint to be sufficient, another judge sitting in the same court decided it was insufficient and dismissed it.
We are not aware that it has ever before happened that in the Southern district of New York, or in any district within this circuit, one judge has in effect undertaken to set aside or ignore an order made by another judge of co-ordinate jurisdiction in the same suit. It is contended by the plaintiff that the order first made, sustaining the sufficiency of the complaint, rendered the question res judicata as between the parties, and was the law of the case, binding upon the other judges of the court.
In Roberts & Co. v. Buckley, 145 N. Y. 215, 229, 39 N. E. 966, 970, Judge O'Brien, writing for the New York Court of Appeals, said:
And in Matter of Laudy, 161 N. Y. 429, 434, 435, 55 N. E. 914, 915, Judge Vann, writing for the same court, said:
In Appleton v. Smith, 1 Fed. Cas. 1075, Fed. Cas. No. 498, Justice Miller (of the Supreme Court) sitting as a Circuit Justice in the district of Arkansas, in 1870, had before him a motion to quash an attachment levied on goods. He denied the motion, and in doing so said:
In United States v. Biebusch, 1 F. 213, 1 McCrary 43, Judge McCrary, sitting as a Circuit Judge in 1880, said:
In Cole Silver Mining Co. v. Virginia & Gold Hill Water Co., 6 Fed. Cas. 72, Fed. Cas. No. 2,990, Mr. Justice Field (of the Supreme Court), sitting in the Circuit Court, said:
In Oglesby v. Attrill, 14 F. 214, Judge Pardee, sitting in the Circuit Court for the Eastern District of Louisiana, in 1882, was asked to set...
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