Irving Nat. Bank v. Law

• Decision Date: 09 November 1925
• Docket Number: No. 46.,46.
• Citation: 9 F.2d 536
• Parties: IRVING NAT. BANK v. LAW.
• Court: U.S. Court of Appeals — Second Circuit

9 F.2d 536 (1925)

IRVING NAT. BANK v. LAW.

No. 46.

Circuit Court of Appeals, Second Circuit.

November 9, 1925.

Morris, Plante & Saxe, of New York City (Guthrie B. Plante, Merton E. Lewis, and David S. Elkins, all of New York City, of counsel), for plaintiff in error.

Platt, Field & Taylor, of New York City (Martin Taylor and Almet Jenks, Jr., both of New York City, of counsel), for defendant in error.

Before ROGERS, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

At the outset the question arises whether a decision of the Appellate Division of the Supreme Court of New York upon the meaning of a New York statute is so conclusive as to relieve us from the responsibility of any independent consideration, as a decision of the Court of Appeals of that state confessedly would do. So far as we have found, the Supreme Court has never directly passed upon that question, and it may therefore be regarded as not conclusively settled. However, the Circuit Court of Appeals of the Sixth (U. S. Tel., etc., Co. v. Central Union Tel. Co., 202 F. 66, 122 C. C. A. 86) and of the Eighth Circuits (Federal Lead Co. v. Swyers, 161 F. 687, 88 C. C. A. 547; Anglo-American, etc., Co. v. Lombard, 132 F. 721, 742, 68 C. C. A. 89; Westerlund v. Black Bear Mining Co., 203 F. 602, 609, 121 C. C. A. 627) have held that a federal court is bound to conform only with the construction of a local statute of the highest court of the state. This has also been held by two District Courts. Continental, etc., Co. v. Interborough R. T. Co., 165 F. 945, 959; In re Gary, 281, F. 218, 222. The Circuit Court of Appeals for the Sixth Circuit, in Reichardt v. Hill, 236 F. 817, 822, 150 C. C. A. 79, 84, "In view of the apparent harmony" of the decisions of the intermediate appellate court and the Supreme Court of the state followed the rulings of the former, but we do not understand that it meant to overrule its earlier decisions or to treat the rulings of an intermediate state court as conclusive.

In Re Gilligan, 152 F. 605, 81 C. C. A. 595, the Circuit Court of Appeals for the Seventh Circuit appears to have thought the decision of a court of intermediate appeal in Indiana conclusive, because it was final, unless certified or transferred to the Supreme Court of the state, or unless it involved $6,000. So understood, the case stands alone, so far as we can find. It seems to us that the mere fact is not relevant that in the especial case no appeal was possible. We understand the doctrine to mean that the highest court of the state, by declaring what a statute means, settles it, because there is no authority which can gainsay it. Yet, however conclusive between parties to a suit, the decision of a lower court is of course not authoritative upon the highest court; the statute necessarily remains in nubibus, and its construction may be as it will. Therefore, while it is hardly necessary to say that any conclusion of the intermediate appellate courts of New York we read with the great respect to which they are entitled, suitors are entitled to demand of us a decision based upon our own understanding of such statutes as are pertinent to their controversies, and this is a duty which we cannot properly avoid.

The question at bar is of the meaning of section 13 of the Civil Practice Act of New York, which, so far as relevant, provides that when a cause of action, as in the case at bar, arises outside New York, "an action cannot be brought * * * after the expiration of the time limited by the laws of a state or country where the cause of action arose." Two views are possible of this provision, one, that the law exposed persons sued in New York to no longer a period of limitation than did the law of the place where the cause of action arose; the other, that no one should be sued in New York if at the time he could not be sued in the state where the cause of action arose. The point arose in Isenberg v. Rainier, 145 App. Div. 256, 130 N. Y. S. 27 (1st Dept.), and it was ruled flatly that the second was the proper view. It has arisen in the same department three times since, and each time the court recognized the...