Glaser v. North American Uranium & Oil Corp.

• Decision Date: 17 May 1955
• Docket Number: No. 224,Docket 23390.,224
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Leon H. GLASER, Plaintiff-Appellant, v. NORTH AMERICAN URANIUM & OIL CORP., a corporation, Defendant-Appellee.

222 F.2d 552 (1955)

Leon H. GLASER, Plaintiff-Appellant, v. NORTH AMERICAN URANIUM & OIL CORP., a corporation, Defendant-Appellee.

No. 224, Docket 23390.

United States Court of Appeals Second Circuit.

Submitted March 11, 1955.

Decided May 17, 1955.

Schmidt, Egan, Kenny, Smith & Murray, New York City, for appellant; Michael J. Kenny, New York City, of counsel.

Simpson, Thacher & Bartlett, New York City, for appellee; Stephen P. Duggan, Jr., Burton M. Abrams, Robert W. Bjork, New York City, of counsel.

Before MEDINA and HINCKS, Circuit Judges, and BURKE, District Judge.

BURKE, District Judge.

Plaintiff, a citizen and resident of California, brought this action in the Southern District of New York for breach of contract against North American Uranium & Oil Corp., a Delaware corporation, invoking federal jurisdiction on the ground of diversity of citizenship. The complaint was duly filed with the Clerk of the District Court. There was also filed a written request for a warrant of attachment supported by plaintiff's affidavit dated October 4, 1954. On the same day a warrant of attachment was issued out of the District Court. The warrant was delivered on October 6, 1954 to the United States Marshal for execution. The Marshal made a levy and seized a deposit of the defendant in the Public National Bank & Trust Co. of New York in the sum of $107,000. On October 6, 1954 a copy of the summons and complaint was delivered to James J. Crisona, then secretary-treasurer of the defendant, at his law office in New York.

The defendant moved in the District Court to vacate and set aside the warrant of attachment and the levy on the grounds stated in his papers as follows:

"(1) That at the time of the issuance of the aforesaid warrant of attachment the defendant was a foreign corporation not doing business within the State of New York and the action was brought on behalf of the plaintiff, a non-resident, and the Court has no jurisdiction under the provisions of Section 225 of the New York General Corporation Law McKinney\'s Consol.Laws, c. 23 of either of the parties or of the subject matter hereof; and

"(2) That the papers upon which the aforesaid warrant of attachment was granted are insufficient to confer jurisdiction upon this Court in that they do not establish a prima facie cause of action in favor of the plaintiff against the defendant".

The District Court granted the motion on both grounds in a brief memorandum decision dated November 4, 1954. No order was entered. The plaintiff, treating the memorandum decision as an order, filed a notice of appeal to this Court.

The defendant argues that the order is not appealable since it is not a final decision terminating the litigation on the merits. We hold that it is appealable because it finally determines a claim of right "separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528; Swift & Co. Packers v. Compania Columbiana Del Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206. Republic of Italy v. De Angelis, 2 Cir., 206 F.2d 121. Should the plaintiff be denied appellate review until the whole case is finally adjudicated, judicial support of his position as to the validity of the attachment at that stage would in all probability be a hollow victory. It may well be doubted whether rejuvenation of the attachment even now would be of any value, since no stay of the order vacating the warrant and levy was obtained and there are now no funds under the Marshal's control. That, however, is not our concern. It is not for us to say whether the remedy he seeks to vindicate by this appeal will benefit him. Our function is to...