Wienbroer v. United States Shipping Board Emergency Fleet Corporation

• Decision Date: 29 May 1924
• Citation: 299 F. 972
• Parties: WIENBROER v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al.
• Court: U.S. District Court — Eastern District of New York

299 F. 972

WIENBROER v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al.

United States District Court, E.D. New York.

May 29, 1924

Frederick R. Graves, of New York City, for plaintiff.

Ralph C. Greene, U.S. Atty., of Brooklyn, N.Y. (Edgar G. Wandless of New York City, of counsel, appearing specially for defendant United States Shipping Board Emergency Fleet Corporation, only, and Nathan A. Smyth, of New York City appearing specially for defendant Munson Steamship Line, for purpose of this motion only), for defendants.

CAMPBELL District Judge.

This is a motion made by both defendants, pursuant to section 278 of the Civil Practice Act and rule 107 of the Rules of Civil Practice, for a judgment dismissing the complaint herein, on the ground that the court had no jurisdiction of the person of the defendants. The action has been removed to this court from the New York Supreme Court, Richmond County, and the defendants have both appeared specially for the purpose of making this motion.

This action is brought under the Merchant Marine Act of June 5 1920, c. 250, Sec. 33 (Comp. St. Ann. Supp. 1923, Sec. 8337a), for damages for injuries alleged to have been caused to the plaintiff by the negligence of the defendants, their agents or servants, aboard a ship owned or leased by them. The complaint alleges that the defendant Munson Steamship Line was and now is a corporation organized and existing under and by virtue of the laws of the state of New York, and at all said times was and now is doing business in the state of New York, with its principal office for the regular transaction of business in the borough of Manhattan, city, county, and state of New York.

The county of Richmond is in the Eastern district of New York, while the county of New York is in the Southern district of New York, as the said state is divided into federal court districts. The state of New York is under the state Constitution divided into judicial districts, the county of Richmond being in the Second judicial district, and the county of New York in the First judicial district.

In my opinion, however, Congress did not, by the words 'the court of the district in which the employer defendant resides or in which his principal office is located, mean the federal court district when the action is brought in the state courts, nor the state judicial district when the action is brought in the New York state courts, but did mean, when the action is brought in the New York state courts, the county in which the defendant resides or has his principal office, as the county is in reality the district for the purpose of determining where actions are to be brought.

Under the New York state law the plaintiff is bound, when bringing an action in the state Supreme Court, to designate the county in which the trial of the action is desired. See rule 45 of the Rules of Civil Practice of the state of New York, so much thereof as is necessary for consideration in the case at bar reading as follows:

'Rule 45. Requisites of Summons.-- The summons must state the court in which the action is brought, the names of the parties, and, if in the Supreme Court, the county which the plaintiff designates as the place of trial.'

And provision is made for holding terms of court, including Trial Terms with juries, in each of the counties of the state. The state judicial districts are...