All American Airways v. Village of Cedarhurst, Civ. A. 12680.

• Decision Date: 10 April 1953
• Docket Number: Civ. A. 12680.
• Citation: 111 F. Supp. 677
• Parties: ALL AMERICAN AIRWAYS, Inc. et al. v. VILLAGE OF CEDARHURST et al.
• Court: U.S. District Court — Eastern District of New York

111 F. Supp. 677

ALL AMERICAN AIRWAYS, Inc. et al. v. VILLAGE OF CEDARHURST et al.

Civ. A. 12680.

United States District Court E. D. New York.

April 10, 1953.

Frank J. Parker, U. S. Atty. for the Eastern District of New York, by Gerard E. Molony, Asst. U. S. Atty., Brooklyn, N. Y., James E. Kilday, Special Asst. to the Atty. Gen., Emory T. Nunneley, Jr., General Counsel Civil Aeronautics Board, Washington, D. C., Stephen F. Dunn, General Counsel U. S. Department of Commerce, Washington, D. C., Robert P. Boyle, Acting General Counsel Civil Aeronautics Administration, Oklahoma City, Okl., for the intervenors.

Emerson A. Swartz, Garden City, N. Y. (James G. Moore, Garden City, N. Y., of counsel), for defendants in their Individual Capacities, Ernest E. Eldred, David H. Weyant, Jr., Kenneth C. Newman, Charles E. Lapp, Jr., Ralph Wendel and Maurice Brandt.

BYERS, District Judge.

This is a motion by the Civil Aeronautics Board and the Administrator of Civil Aeronautics, intervenors, to dismiss the counterclaim contained in the answer of the individual defendants filed August 28, 1952 (paragraphs 19 to 30, inc.) on the alleged ground that the court lacks jurisdiction over the subject matter and over the intervenors "which are agencies of the United States within the definition of 28 U.S.C. 451 acting in their governmental capacity, the United States not having consented to being sued in the manner attempted in the purported counterclaim."

If the theory of the motion is correctly understood, only a very narrow contention is offered, namely that the said counterclaim was not before the Court of Appeals of this Circuit when it announced its decision on January 7, 1953 continuing the injunction pendente lite in this case heretofore ordered, D.C., 106 F.Supp. 521.

It sufficiently appears from the various papers on file that this action for declaratory judgment was commenced by the filing of a complaint on June 5, 1952. By order of June 19, leave was granted to the government agencies above mentioned to intervene as plaintiffs, and their complaint was filed eleven days later.

The answer of the defendant Village of Cedarhurst and its officials was filed on June 19. The answer of the individual defendants was filed on August 28, 1952 and it contains the counterclaim above referred to.

The portrayal of the legal issues presented by this controversy contained in the opinion of the Court of Appeals, 2 Cir., 201 F.2d 273, 276, is so informative as to foreclose any attempt at further exposition except to meet the requirements of this motion.

The opinion recites the intervention and explains its justification, and with reference to the pleadings the language is:

"Since the grant of the injunction below, the defendants have filed their answers. In the answer filed by certain of the individuals they claim ownership of property in the Village and, both for themselves and other land owners, that these flights create trespasses and nuisances, and by counterclaim ask for an injunction upon what in essence is the U. S. v. Causby 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 principle." (Italics supplied.)

This court is asked to say that the counterclaim asserted in the answer filed August 28, 1952 was not comprehended in the foregoing language, but that the reference was only to that contained in the answer filed by the Village and its officials.

It is difficult to believe that a cause which came to argument on December 10, 1952, over three months after the filing of the answer containing this counterclaim, proceeded to decision, oblivious of the pleading to which these intervenors now...