Archawski v. Hanioti

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation129 F. Supp. 410
PartiesR. V. ARCHAWSKI et al., Libellants, v. Basil HANIOTI, etc., et al., Respondents.
Decision Date03 June 1955

129 F. Supp. 410

R. V. ARCHAWSKI et al., Libellants,
Basil HANIOTI, etc., et al., Respondents.

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

February 9, 1955.

Judgment Reversed June 3, 1955.

129 F. Supp. 411

Harry D. Graham, New York City, for libellants.

Leonard Altschul, New York City (Archibald Palmer, New York City, of counsel), for respondent.

WALSH, District Judge.

After a decree had been entered in favor of libellants, respondent moved to vacate the decree as one entered upon a default and to vacate the order for body execution entered in connection with that decree. Both motions are denied.

The trial of this action was duly scheduled for November 23, 1954. On that date the attorneys of record for the respondent Hanioti appeared before the court, stating they had been unable to get in touch with their client, had no idea where he could be reached, and did not know when or if he would return. They conceded that he was already in default in appearing for oral examination although an order directing his appearance had been made from the bench by Judge Sugarman, and it is uncontradicted that he was in default on three other occasions in connection with this matter. They were unprepared to offer any defense. The attorney for the libellants submitted his proof and a decree was granted in their favor. On December 6th the decree was formalized and signed by the Court embodying the judgment and authorizing the issuance of execution against the person of Hanioti.

Thereafter, on December 7th, respondent Hanioti first manifested an interest in these proceedings. By a show cause order he moved to vacate the decree and to enjoin its enforcement by body execution. His explanation for his failure to cooperate with his attorneys on November 23rd was that he had had a falling out with them as long ago as December, 1953, that he had discharged them, that they had refused to represent him, that they refused to turn over papers in their possession pertaining to his various lawsuits to his present attorney (who was not of record in this case), and refused to give him any information as to the date of trial in the present action.

However, his own affidavit belies these excuses as well as his claim made in court by one of his present attorneys, that he had been under the impression that the present action was dismissed by Judge Ryan in 1952. His affidavit asserts that on November 9th his attorneys of record notified his business associate, through whom he customarily received communications, one Stathos, that the trial date was approaching and that they would not represent him. This message was relayed to him. Even if it is true, as he claims, that at that time they told Stathos the trial date was the first week in December, it does not excuse his failure to ascertain the exact and correct date independently, considering the alleged nature of his relations with these attorneys, nor his failure to take those steps which any reasonable litigant, with bona fide intentions of defending a suit for over $130,000, would take under similar circumstances in the belief that the date of trial was less than one month distant. There is no basis for believing that any other attorney represented him at the date of trial. He did not ask his present attorney, Mr. Altschul, to represent him until after its conclusion. He took no steps to notify the court of any substitution of attorneys until even later.

These facts, his testimony under oath before me, and the record of his testimony before Judge Ryan, convince me

129 F. Supp. 412
that the default, if it may so be called, was wilful and that the respondent is an unbelievable scoundrel, indifferent to money judgments against him because he believes himself judgment proof under the ordinary methods of execution. The motion to vacate the decree is accordingly denied

The only question remaining is whether body execution is appropriate in this case. Libellants' action is based on the breach of a contract of affreightment. In 1947 they paid for passage from New York to various European ports or back aboard a vessel known as City of Athens. The voyages, scheduled for July 15, 1947 and thereafter, never took place, because, prior to that date, the vessel was libelled by various creditors and sold. The passage money was never refunded...

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4 cases
    • United States
    • U.S. District Court — Southern District of New York
    • 27 Febrero 1970
    ...corporate veil be pierced and that Philpotts be held personally liable for the breach of the charter party. Cf. Archawski v. Hanioti, 129 F.Supp. 410 (S.D.N.Y.1955). Turning to the second issue above, the Appellate Division of the New York Supreme Court has summarized the law of civil consp......
  • Archawski v. Hanioti
    • United States
    • United States Supreme Court
    • 9 Abril 1956
    ...of the District Court. The District Court held that this was an action on a maritime contract, within the admiralty jurisdiction, 129 F.Supp. 410. The Court of Appeals reversed, holding that the suit was in the nature of the old common law indebitatus assumpsit for money had and received, b......
  • Staub v. Anderson
    • United States
    • Supreme Court of Connecticut
    • 28 Febrero 1964
    ...controversy that plaintiffs can resort to state procedures under Rule 20 for the enforcement of admiralty decrees. Archawski v. Hanioti, 129 F.Supp. 410, 412 (S.D.N.Y.); see also Panteloglou v. Cia. de Navegacion San George, S.A., 303 F.2d 641, 643 (2d Cir.); Archawski v. Hanioti, 239 F.2d ......
  • Archawski v. Hanioti, 9
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 26 Diciembre 1956
    ...decree, respondent appeared by his present proctor and in effect moved for a new trial. The motion was denied in an opinion reported at 129 F.Supp. 410. We proceed to consider the sufficiency of the proofs adduced on the inquest in support of libellants' claim. The Supreme Court has held "t......

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