Gart v. Cole

Decision Date16 January 1959
Docket NumberDocket 25358.,No. 184,184
Citation263 F.2d 244
PartiesWilliam GART et al., Plaintiffs-Appellants, v. Albert M. COLE et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

David I. Shapiro, of Dickstein, Shapiro & Friedman, New York City (Harris L. Present, New York City, and Sidney Dickstein and Arthur J. Galligan, of Dickstein, Shapiro & Friedman, New York City, on the brief), for appellants.

Morton S. Robson, Asst. U. S. Atty., S. D.N.Y., New York City (Arthur H. Christy, U. S. Atty., and John A. Guzzetta, Asst. U. S. Atty., New York City, on the brief), for appellees Albert M. Cole and Walter S. Fried.

Anthony Curreri, New York City (Charles H. Tenney, Corp. Counsel, City of New York, and Leo A. Larkin, Pauline

K. Berger, and Benjamin Offner, New York City, on the brief), for appellees City of New York, Robert F. Wagner, et al.

Edward D. Burns, of Saxe, Bacon & O'Shea, New York City (Porter R. Chandler and William R. Meagher, New York City, and Martin Fogelman, of Saxe, Bacon & O'Shea, New York City, on the brief), for appellee Fordham University.

William Eldred Jackson, of Milbank, Tweed, Hope & Hadley, New York City (Rebecca M. Cutler, of Milbank, Tweed, Hope & Hadley, New York City, on the brief), for appellee Lincoln Center for Performing Arts, Inc.

Rosenman, Goldmark, Colin & Kaye, New York City, for appellee Webb & Knapp Lincoln Square Corp.

Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.

Certiorari Denied April 27, 1959. See 79 S.Ct. 898.

CLARK, Chief Judge.

This is the fifth of a prolonged series of actions attacking the validity of the Lincoln Square Urban Renewal Project, a slum redevelopment project of the City of New York partially financed by federal funds under Title I of the Housing Act of 1949, 42 U.S.C. §§ 1441 et seq. Appellants, property owners and residential and business tenants in the Project area, instituted this action as individuals and on behalf of all others similarly situated just seven days after the Supreme Court denied certiorari in 64th Street Residences, Inc. v. City of New York, 4 N.Y.2d 268, 150 N.E.2d 396, certiorari denied Harris v. City of New York, 357 U.S. 907, 78 S.Ct. 1152, 2 L.Ed.2d 1157, the first of the previous actions to proceed to final judgment on the merits.1 Although none of the appellants were named as parties plaintiff in that action, all are members of the classes there represented. And appellees here, with the exception of Albert M. Cole, sued as Administrator of the Federal Housing and Home Finance Agency, and Walter S. Fried, sued as Regional Administrator of that agency, were defendants in the 64th Street Residences case. This appeal questions the district court's denial of appellants' motion for temporary injunction and entry of summary judgment in favor of all of the appellees. In a reasoned opinion, D.C.S.D.N.Y., 166 F. Supp. 129, the court below held appellants' claims against all but the FHHFA officials barred by the judgment in the 64th Street Residences case and found no validity in the claims against those officials.

There is no dispute here that the claims asserted in this action against defendants other than Cole and Fried are identical with those unsuccessfuly raised against these same parties in the prior New York action. In both suits the Project was attacked on the grounds that Fordham University's participation as a Project sponsor violated the principle of separation of church and state, as embodied in the First Amendment to the United States Constitution and made applicable to the City through the Fourteenth Amendment, and that the City's negotiation of minimum bids to be made by the sponsors at a subsequent public auction was unlawful. As members of the classes of plaintiffs represented in the 64th Street Residences case, appellants are barred by the judgment there from relitigating these issues with these defendants in the New York courts. Ashton v. City of Rochester, 133 N.Y. 187, 195, 30 N.E. 965, 31 N.E. 334, 28 Am.St.Rep. 619; People's Gas & Electric Co. of Oswego v. City of Oswego, 207 App.Div. 134, 202 N.Y.S. 243, affirmed 238 N.Y. 606, 144 N.E. 911; Campbell v. Nassau County, 192 Misc. 821, 82 N.Y.S. 2d 179, affirmed 274 App.Div. 929, 83 N. Y.S.2d 511. And the full-faith-and-credit clause requires a federal court to give equal effect to that judgment as a bar to relitigation of these issues. American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231, 86 A.L.R. 298; Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 64 S.Ct. 208, 88 L.Ed. 149, 150 A.L.R. 413. See also McIntosh v. City of Pittsburg, C.C.W.D.Pa., 112 F. 705.2

It is to be noted that the very holding in American Surety Co. v. Baldwin, supra, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231, 86 A.L.R. 298, negates the strained inference appellants draw from Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832, that a state court decision has less than its usual effect as res judicata where constitutional questions were decided and no appeal of right to the Supreme Court was available. Nor did the Sixth Circuit, as appellants suggest from their reading of Trailmobile Co. v. Whirls, 6 Cir., 154 F.2d 866, reversed on other grounds in 331 U.S. 40, 67 S.Ct. 982, 91 L.Ed. 1328, render all state court decisions on questions of federal law a nullity in the federal courts. The court's statement, 154 F.2d 866, 871, that "The interpretation by the state court of the rights of a citizen under a federal statute is not binding upon the federal courts" properly relates only to the impact of a state decision as stare decisis, not as res judicata — a distinct question which the court there correctly answered with its holding that the plaintiff had been neither party nor privy to the state court's judgment.

Nor is there valid constitutional objection to holding appellants bound by the 64th Street Residences judgment. All had ample notice of the suit; parties plaintiff there had no interests contrary to appellants in this action; and the same counsel prosecuted both suits. To the general rule that only persons subject to a court's jurisdiction are bound by its judgment, there has long been an exception for suits of a representative character. Smith v. Swormstedt, 16 How. 288, 57 U.S. 288, 14 L.Ed. 942; Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111; Hansberry v. Lee, 311 U. S. 32, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L. R. 741. True, the courts in practice have narrowly delimited this exception lest persons be improperly denied their day in court. But this in federal procedure has been more a decision as to proper rule-making than an application of constitutional principle.

Thus under the Federal Rules the legal development has been that, except for the disposition of specific property, only judgments in actions under F.R. 23(a) (1) — the so-called "real" class actions — are binding on members of the classes represented who are not parties. See, e. g., Dickinson v. Burnham, 2 Cir., 197 F. 2d 973, 979, certiorari denied 344 U.S. 875, 73 S.Ct. 169, 97 L.Ed. 678; Oppenheimer v. F. J. Young & Co., 2 Cir., 144 F.2d 387, 390. As the Dickinson case points out, this view has been criticized, notably by text writers, as not going to the extent permitted by constitutional due process. For the Constitution requires at most only that "for any * * reason the relationship between the parties present and those who are absent is such as legally to entitle the former to stand in judgment for the latter." Hansberry v. Lee, supra, 311 U.S. 32, 43, 61 S.Ct. 115, 119. Also of paramount relevance is the well-known suggestion of Chief Justice Stone in this case that a judgment may be constitutionally based on notice alone. 311 U.S. 32, 40, 61 S.Ct. 115, 117. But, beyond all this, the 64th Street Residences judgment was in an action typically "real"; and we see no reason to think that it would not have been binding, whatever its origin. See 3 Moore's Federal Practice ¶ 23.11, at n. 5 (2d Ed. 1948), and authorities there cited; and see generally cases collected in the annotations in 20 A.L.R. 1133 and 64 A.L.R. 1262.

There remains to be considered the dismissal of the claims against appellees Cole and Fried, the Administrator and Regional Administrator of the FHHFA. Appellants asserted basically three claims against them: (1) that the FHHFA's participation in the Lincoln Square Urban Renewal Project constitutes an unconstitutional subsidy to a religious institution; (2) that the sale by the City of portions of the Project area to sponsors at negotiated minimum bids was a failure to comply with §§ 106 (c) (7) and 110(c) (4) of the Housing Act of 1949, 42 U.S.C. §§ 1456(c) (7), 1460(c) (4); and (3) that the Administrator illegally denied various residential tenants, including some appellants, an oral hearing in which to challenge the feasibility of the City's relocation plan. The first claim but repeats the one so strongly asserted against the City and the Project sponsors in the state case. The First Amendment's requirement of the separation of church and state applies equally to the state and the Federal Government. Zorach v. Clauson, 343 U.S. 306, 309, 72 S.Ct. 679, 96 L.Ed. 954; Everson v. Board of Education of Ewing Township, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352. As to both governments, the basic issue concerns the transaction between the City and Fordham University. Moreover, the City's use of federal funds was considered by the New York Court of Appeals in its opinion in 64th Street Residences and was heavily stressed by the plaintiffs there in the petition for certiorari. And as a practical matter, the relief appellants seek in this action against the FHHFA will curtail the progress of the Lincoln Square...

To continue reading

Request your trial
34 cases
  • NAACP v. Wilmington Medical Center, Inc.
    • United States
    • U.S. District Court — District of Delaware
    • June 21, 1978
    ...family, but focused instead on its consequences for the entire class of putative beneficiaries under Title VI and Section 504. Cf. Gart v. Cole, 263 F.2d 244 (C.A.2), cert. denied, 359 U.S. 978, 79 S.Ct. 898, 3 L.Ed.2d 929 (1959); Powelton Civic Home Owners Ass'n v. HUD, 284 F.Supp. 809 (E.......
  • Hahn v. Gottlieb
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 14, 1970
    ...is an "adjudication", a term which implies a greater direct impact on individual interests than is true in our case. See Gart v. Cole, 263 F.2d 244, 251 (2d Cir.), cert. denied, 359 U.S. 978, 79 S.Ct. 898, 3 L.Ed.2d 929 (1959); see text 5 The FHA is financed entirely by premiums on mortgage......
  • Norwalk Core v. Norwalk Redevelopment Agency
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 7, 1968
    ...We have already given our reasons for rejecting that view.38 The approach we have taken is consistent with our decision in Gart v. Cole, 263 F.2d 244 (2 Cir.), cert. denied 359 U.S. 978, 79 S.Ct. 898, 3 L.Ed.2d 929 (1959). The appellants in that case claimed standing to assert violations of......
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond
    • United States
    • U.S. District Court — Southern District of New York
    • February 17, 1969
    ...governing admission to the bar that may inhibit exercise of First Amendment rights during the period of their study. Cf. Gart v. Cole, 263 F.2d 244, 250 (2 Cir.), cert. denied, 359 U.S. 978, 79 S.Ct. 898, 3 L.Ed.2d 929 (1959); Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964); ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT