Dix v. Brownell, Civ. A. No. 13699.

• Decision Date: 29 June 1954
• Docket Number: Civ. A. No. 13699.
• Parties: DIX v. BROWNELL, Atty. Gen.
• Court: U.S. District Court — Eastern District of New York

122 F. Supp. 538

DIX v. BROWNELL, Atty. Gen.

Civ. A. No. 13699.

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

June 29, 1954.

George C. Dix, plaintiff, in person, for the motion.

Leonard P. Moore, U. S. Atty., Brooklyn, N. Y., for defendant, by Walter T. Nolte, Office of Alien Property Custodian, Department of Justice, Washington, D. C., in opposition.

RAYFIEL, District Judge.

The defendant moves to dismiss the complaint herein and the plaintiff, by cross motion, asks for summary judgment in his favor.

The plaintiff, a citizen of the United States, and a resident of the Eastern District of New York, brings this action against the defendant, as successor to the Alien Property Custodian, under section 9(a) of the "Trading with the Enemy Act", Title 50 U.S.C.A. Appendix, § 9(a), claiming that he has a right, title and interest in certain real property located in New Jersey, the title to which was vested in the defendant on August 8, 1951, pursuant to vesting order No. 18294.

The facts, briefly, are as follows: The property in question was owned by D. A.B. Recreational Resort, Inc., a New York corporation. In 1943 the Alien Property Custodian vested all the stock in the said corporation, ousted its officers and directors, and designated his own employees to serve in their places. Taxes were assessed against the property for the years 1943, 1944, 1945, and 1946 by the Borough of Bloomingdale, County of Passaic, State of New Jersey, no part of which was paid. On December 27, 1946, the Collector of Taxes of the said Borough, by reason of said default in payment, conducted a sale of the property and the same was sold to the plaintiff, who duly filed the certificates of sale in the Register's Office, County of Passaic, on January 4, 1947.

Under the laws of the State of New Jersey the purchaser of the said certificates had the right to bring an action to foreclose the right of redemption therein not less than two years after the execution and delivery of the said certificates, provided that the property had not been redeemed during that period, N.J.S.A. 54:5-86. The plaintiff commenced such an action in the Superior Court of New Jersey, Chancery Division, Passaic County, on July 1, 1951. The D.A.B. Recreational Resort, Inc. and the United States of America, among others, were named as defendants. On August 8, 1951, while the said action was pending, the Attorney General of the United States issued vesting order No. 18294, naming the D. A.B. Recreational Resort, Inc., as owner of the fee, and vested the title to the said property.

The said action was thereafter removed from the Superior Court to the United States District Court for the District of New Jersey and the action against the United States of America was dismissed on motion. The action was then remanded to the Superior Court and resulted in a judgment of foreclosure against the remaining defendants. The plaintiff then commenced this action.

The defendant bases his motion to dismiss the complaint on three grounds: (1) that the court lacks jurisdiction over the subject matter for the reason that the plaintiff does not and cannot show a right, title or interest in the vested property which is a condition of the sovereign consent to a suit against the defendant under Section 9(a) of the "Trading with the Enemy Act", 50 U.S.C.A.Appendix, § 9(a), (2) that in effect this is an action to enforce a tax liability and no such liability may be enforced without the consent of the defendant by virtue of Section 36(b) of the "Trading with the Enemy Act", 50 U.S.C.A.Appendix, § 36(b) and (3) that the complaint fails to state a claim against the defendant upon which relief can be granted.

In contemplating the defendant's motion the complaint must be read and considered in the light most favorable to it. That portion of Section 9(a), supra, with which we are here concerned provides as follows: "Any person not an enemy or ally of enemy claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States, or to whom any debt may be owing from an enemy or ally of enemy whose property or any part thereof shall have been conveyed,...