Dressler v. MV Sandpiper

Citation331 F.2d 130
Decision Date09 April 1964
Docket NumberDocket 28499.,No. 333,333
PartiesAnna DRESSLER, Legatee Mortgagee of The Estate of Morris Dressler, Libelant-Appellee, v. The MV SANDPIPER, its boilers, engines, tackle, apparel, furniture, etc., Joseph Fanale, and against all persons intervening by their interest therein, Respondents-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Sidney Feldshuh, of Feldshuh & Frank, New York City, for libelant-appellee.

Donald S. Sherwood, New York City (Kenneth Heller, New York City, on the brief), for respondents-appellants.

Before SMITH, KAUFMAN and MARSHALL, Circuit Judges.

KAUFMAN, Circuit Judge:

This action was brought in Admiralty to foreclose a preferred ship mortgage upon the MV Sandpiper, a vessel owned by respondent Fanale. Although the libel was returnable on June 19, 1963, the respondent failed to file an answer by that date, and on July 18, the libelant moved for a summary judgment, pursuant to Admiralty Rule 58. On July 30, one day before the return date of libelant's motion, respondent's answer to the libel was belatedly filed, alleging, inter alia, that the mortgage and the note which it secured were usurious. On this appeal, respondent insists that these unsupported and conclusory allegations of his untimely answer to the libel were sufficient to create a genuine issue of fact, and hence to render erroneous the District Court's award of summary judgment.

As alleged in the libel, the note and mortgage in the principal amount of $21,000 were executed by Fanale to one Morris Dressler in June of 1962, and were duly recorded. In September of that year, Dressler died, and the libelant became the owner of all of his real and personal property — presumably including the claim against Fanale — except for certain specific bequests unrelated to the present action. Three months thereafter, the first installment of principal and interest, amounting to some $5,565, became due under the mortgage note.1 Although demand was duly made for this amount, the respondent paid only $3,000, and, pursuant to an acceleration clause contained in both the note and mortgage, the libelant accordingly declared the entire unpaid balance on the note to be due and owing. When the respondent failed to satisfy this demand, the present action was commenced to foreclose the mortgage.

When finally filed, the respondent's answer fully admitted execution and delivery of both the note and mortgage, and further conceded that only $3,000 had been paid. In addition and by way of affirmative defense, however, the respondent alleged that the libelant had granted a temporary "moratorium" upon further payments when the $3,000 sum was tendered, and that Fanale had thus been "entrapped" into not complying further with the terms of the note. Moreover, the answer alleged that "contrary to the terms of the mortgage note, Respondent did not receive the sum of $21,000 * * * prior to January 1, 1962, but up and until and including January 1, 1962, respondent only received the approximate sum of $17,500" from the libelant. Since the note called for 6% interest to run from January 1, 1962, on a $21,000 principal amount, Fanale thus contended that the note and mortgage were usurious and hence invalid.

On the motion for summary judgment libelant submitted additional evidence to the District Court indicating that the note and mortgage had been given in substitution for two notes, totalling $21,000, which were executed by Fanale to Dressler in April of 1962. It was also revealed that while the motion for summary judgment was pending but before the answer had been filed, the respondent had tendered checks of $2,965 and $365 in partial payment of his indebtedness, but that both had been rejected by the libelant. Respondent's attorney submitted only his own affidavit, which contained little more than a summary of the allegations set forth in the answer.

The District Judge refused to consider this affidavit and while his decision in this respect has not been challenged on appeal, we find it plainly correct. In the words of Admiralty Rule 58(e), opposing affidavits must be made "on personal knowledge," and must "set forth such facts as would be admissible in evidence." It is clear that the affidavit submitted here, concededly based on a "reading of Respondent's answer," does not measure up to these requirements.

The District Court quickly disposed of the respondent's claim of an oral "moratorium" in the answer to the libel, on grounds which are equally fatal to Fanale's similar contentions on appeal. Thus, it was noted that New York will sustain a modification of a pre-existing obligation only if written or supported by consideration, and that the respondent had failed to allege either of these prerequisites. See N.Y. Personal Property Law McKinney's Consol.Laws, c. 41, 33 (2).

While no similar legal barrier stood in the way of the claim of usury, it was dismissed with equivalent dispatch. After noting that "no explanation of respondent's default in answering was supplied," the Court found the answer, "treated as an affidavit," to be "too general to be useful on the present occasion." As a result, the Court concluded that respondent's "assertions of usury scarcely raise the defense on such an occasion as this," and accordingly granted the libelant's motion for summary judgment.

On appeal, Fanale insists that his answer and its contentions of usury raised a "substantial issue" of fact "which can be resolved only upon a * * * hearing." The libelant, on the other hand, maintains that the District Court was entirely justified in looking beyond the bare pleadings in an effort to determine whether there was a "genuine issue of fact to be tried." We are squarely faced, therefore, with significant questions as to the proper role of the District Court in motions for summary relief.

In resolving such issues, we are by no means confined to our experience as a Court of Admiralty. For as adopted in 1961, Admiralty Rule 58 is a carbon copy of Rule 56, F.R.Civ.P., as it existed prior to the amendments made effective in July of 1963. But if the long history of practice under the Civil Rule thus provides a convenient starting point, the teachings of that history have often reflected sharply divergent judicial attitudes towards the desirability of the summary judgment procedure. Thus, in apparent accord with the decision below, many courts and commentators have insisted that the device of summary judgment was to have a far broader range than the old, common-law demurrer, and that the availability of affidavits, depositions, admissions and the like represented an acknowledgment that mere formal denials and allegations, while sufficient to stand as pleadings, were to be pierced upon Rule 56 motions and could not forestall the award of summary relief. See, e. g., Engl v. Aetna Life Ins. Co., 139 F.2d 469 (2d Cir. 1943); Thomas v. Mutual Benefit Health & Accident Ass'n, 220 F.2d 17 (2d Cir. 1955); City of Zephyrhills, Fla. v. Crummer & Co., 237 F.2d 338 (5th Cir. 1956); Duarte v. Bank of Hawaii, 287 F.2d 51 (9th Cir.), cert. denied, 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961); Community of Roquefort v. William Faehndrich, Inc., 303 F.2d 494 (2d Cir. 1962); Wagoner v. Mountain Savings & Loan Ass'n, 311 F.2d 403 (10th Cir. 1962); Wright, Rule 56(e): A Case Study on the Need for Amending the Federal Rules, 69 Harv.L. Rev. 839 (1956); Clark, "Clarifying" Amendments to the Federal Rules?, 14 Ohio St.L.J. 241, 249-250 (1953).

At the same time, however, a large number of courts, often expressing a fear of "trial by affidavit," displayed a far more restrictive attitude towards motions for summary judgment. In this Circuit, for example, numerous decisions seemed to reflect a great reluctance to find that no genuine issue of fact remained for trial, and we have hence reversed and remanded a long line of cases in which summary judgment had been awarded below. See, e. g., Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946); Colby v. Klune, 178 F.2d 872 (2d Cir. 1949); Bromberg v. Moul, 275 F.2d 574 (2d Cir. 1960); Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962); cf. Empire Electronics Co. v. United States, 311 F. 2d 175 (2d Cir. 1962). Even more vigorously, the Court of Appeals for the Third Circuit long espoused a narrow view of the trial court's role in motions for summary relief. Repeatedly refusing to pierce the allegations of the pleadings, that Court was firm in its insistence that "an affidavit cannot be treated, for purposes of the motion to dismiss, as proof contradictory to well-pleaded facts in the complaint." Frederick Hart & Co. v. Recordgraph Corp., 169 F.2d 580, 581 (3rd Cir. 1948).

As explained by the Advisory Committee, the recent amendments to Rule 56 were designed to overcome just such cases, which, in the words of the Committee, have "impaired the utility of the summary judgment device." "The very mission of the summary judgment procedure," the Committee explained, "is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule." United States Code Annotated, Nov., 1963, pamphlet, pp. 55-56. So that this "incompatible" result might be avoided, Rule 56(e) was specifically amended to provide that "when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."

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