Bernstein v. NV NEDERLANDSCHE-AMERIKAANSCHE, ETC.
Decision Date | 12 August 1948 |
Parties | BERNSTEIN v. N. V. NEDERLANDSCHE-AMERIKAANSCHE STOOMVAART-MAATSCHAPPIJ (CHEMICAL BANK & TRUST CO., Third-Party Defendant). |
Court | U.S. District Court — Southern District of New York |
Bennet, House & Couts, of New York City (William S. Bennet, Victor House, Bernard A. Finkel, and S. D. Altmark, all of New York City, of counsel), for plaintiff.
Burlington, Veeder, Clark & Hupper, of New York City (John L. Galey, of New York City, of counsel), for defendant and third-party plaintiff.
Shearman & Sterling & Wright, of New York City (C. Bedford Johnson, Jr., MacIlburne Voorhies, and William F. Hamilton, all of New York City, of counsel), for third-party defendant.
Plaintiff moves for "rehearing of the motions" decided March 5, 1948, 76 F.Supp. 335. It was then determined that plaintiff be permitted to further amend his second amended complaint, and the complaint as thus amended was dismissed on the ground that the claims therein asserted were barred by the three-year Statute of Limitations of New York, pertaining to claims for injury to property . Plaintiff was also denied permission to intervene herein as party plaintiff in his capacity as temporary receiver of the New York assets of the Red Star Line, appointed by the New York Supreme Court pursuant to Section 977c-b b of the C.P.A. It was directed that one order be settled giving effect to the above determinations. Before this had been accomplished by defendants, plaintiff by order to show cause returnable April 23, 1948, brought on this application.
This is not a motion for a rehearing of the previous decision. Rather, it is a rehearing of the entire matter based upon subsequent facts which came into existence more than a month after the matter was decided.
Plaintiff now requests leave to serve a new amended complaint and he again asks permission to intervene in his capacity as temporary receiver. He also urges that by recent amendments to the Civil Practice Act the claims pleaded are no longer barred by statute.
The Legislature of the State of New York, on March 12, 1948, passed a law amending Section 13, C.P.A.; it was approved by the Governor on April 6, 1948, and by the wording of the bill it was provided that the Act "shall take effect immediately and shall apply to actions heretofore or hereafter commenced," (c. 834 of the Laws of New York of 1948).
This Act reads as follows:
The claims pleaded by plaintiff are based upon an alleged conversion of personal property alleged to have occurred on June 2, 1939. This action was commenced on June 1, 1945. Plaintiff contends that the period excluded by the recent amendment to Section 13 from the time limited in Section 49(7) for the commencement of the action is the period from September 3, 1939 (the date on which Great Britain and France declared war on Germany) to at least May 8, 1945 (V. E. day); he calculates that the time between June 2, 1939, and September 3, 1939, plus the time between May 8, 1945, and June 1, 1945, is the period during which the statute was not tolled, that this period is less than three years and that accordingly the claims pleaded are not barred.
Plaintiff, by his affidavit sworn to on July 16, 1948, alleges that he has been a resident since October 31, 1933; from his pleadings we gather that this residence has been in the State of New York. He further alleges that the defendant at all times was and still is conducting business and maintaining an office within this district, and that third-party defendant is a New York corporation with its principal place of business in this district.
Plaintiff might have instituted this action at anytime after June 2, 1939, and certainly since September 1, 1939, when he returned to this country from Germany. He waited, however, until June 1, 1945 and argues that he is now granted that right of delay by Chapter 834, supra, claiming the privileges created by this retroactive legislation passed almost nine years after his claims accrued.
The amendment has the effect of extending the period of the statute in favor of plaintiffs whose claim accrued in enemy or enemy-occupied territory, during the period of war or enemy occupation. The period fixed is indefinite and indeterminable extending as it does for "the period during which such foreign country was at war with the United States or any of its allies," a period — insofar as Germany, Japan and other countries are concerned — which has not ended and will not end until ratification of a peace treaty. First Nat. Bank of Pittsburgh v. Anglo-Oesterreichische Bank, 3 Cir., 37 F.2d 564.
In construing this statute we are bound by Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, to follow any New York authority on the subject. King v. Commercial Travelers, 68 S.Ct. 488. We have been referred to no decision of any court of the State of New York construing or applying this recent amendment to Section 13, nor have we found any authoritative or official statement which would shed light upon its purpose or intended scope. This impels us to exercise our independent judgment in construing this statute, as now amended, (Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468), and as we believe the New York Courts would construe it.
Considering the genesis of the section, we find that Section 390-a of the Code of Civil Procedure, which was the forerunner of and was reenacted as Section 13 of the Civil Practice Act, applied to causes of action arising outside of the state, and conferred on nonresidents for the first time the right to plead a defense based on the statute of limitations. Prior to this, a non-resident defendant could plead neither the New York statute of limitations nor that of the jurisdiction where the cause accrued. Ruggles v. Keeler, 3 Johns., N.Y., 263, 3 Am.Dec. 482; Olcott v. Tioga R. R. Co., 20 N.Y. 210, 75...
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...litigation when plaintiff must be required to stand upon the allegations he is asserting...' Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart Maatschappij, 79 F.Supp. 38, 42 (S.D.N.Y.1948), modified on other grounds, 173 F.2d 71 (2d Cir. 1949). Although I am not willing to preclude ......
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