Land Oberoesterreich v. Gude

• Decision Date: 31 May 1937
• Citation: 19 F. Supp. 782
• Parties: LAND OBEROESTERREICH v. GUDE et al.
• Court: U.S. District Court — Southern District of New York

19 F. Supp. 782

LAND OBEROESTERREICH v. GUDE et al.

District Court, S. D. New York.

May 31, 1937.

Wachtell, Manheim & Grouf, of New York City (Meyer Grouf, of New York City, of counsel), for plaintiff.

A. Spotswood Campbell, of New York City (Karl T. Frederick, of New York City, of counsel), for defendants.

HULBERT, District Judge.

The defendant applies for an order directing the plaintiff to produce upon the retrial of this case, which will appear on the civil jury calendar of this court on June 14, 1937, in accordance with a preference heretofore granted, certain documents described in a schedule attached to the moving papers and consisting of 59 items. 33 of said items are conceded to be in the possession of the plaintiff's counsel who state that the remaining 26 items, if existent, may be in Austria.

The plaintiff is a Sovereign state, being the Upper Province of the Republic of Austria. It commenced this action April 29, 1932, to recover damages in an amount in excess of $500,000 for the conversion of securities deposited by its then New York representative, Alma & Co., with a firm of New York stock brokers whose account was subsequently taken over by the defendants.

Upon a previous trial which took place in May, 1934, it was conceded at the close of the evidence that no questions of fact were in issue and the judge directed a verdict in favor of the plaintiff for the sum of $76,857.50 as well as for the return of three bonds which remained unsold. Upon appeal the Circuit Court of Appeals held, November 30, 1936, that there was no evidence of conversion and plaintiff was only entitled to payment of the cash surplus remaining on hand, in addition to the three bonds, and remanded the cause with instructions to permit plaintiff, within ten days, to file a stipulation reducing the judgment to $3,304.39 and the three bonds, otherwise granting a new trial. Land Oberoesterreich v. Gude et al. (C.C.A.) 86 F.(2d) 621, reviews the facts at such length that it is unnecessary to reiterate them here. Petition for writ of certiorari was denied February 15, 1937 (57 S.Ct. 493, 81 L.Ed. ___), but the order on mandate was not filed in this court until May 4, 1937, whereupon plaintiff then moved for the preference which was heard on May 10, 1937, and granted.

This application is in the nature of a substitute for a subpœna duces tecum which, of course, could not be served on the plaintiff since it is not within the jurisdiction.

Section 724, Revised Statutes (28 U.S. C.A. § 636), provides as follows:

"§ 636. Production of books and writings. In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default."

While the imposition of a penalty for failure to comply appears to be permissive, the courts seem to have given the statute a strict construction and, therefore, the plaintiff's counsel are naturally apprehensive. They contend, moreover, that defendants are guilty of laches and have not established that the documentary evidence sought is material and that plaintiff may be embarrassed to some extent at least, because in a criminal prosecution of Hans Alma in a Vienna court, some of the documents sought were there used and now constitute a part of the records of said court and that it would require considerable time to obtain authenticated copies thereof and that any attempt on the part of the plaintiff would be impossible before the date set for...