Issaia v. Russo-Asiatic Bank
| Decision Date | 07 December 1934 |
| Citation | 193 N.E. 543,266 N.Y. 37 |
| Parties | ISSAIA v. RUSSO-ASIATIC BANK et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Elizabeth Issaia against the Russo-Asiatic Bank, also known as Banque Russo-Asiatique, and others. From judgment of the Appellate Division, First Department, affirming an order granting plaintiff's motion to strike out an alleged appearance on behalf of the Russo-Asiatic Bank, and an order denying motion to vacate the order for service by publication, the Russo-Asiatic Bank appeals.
Appeal dismissed as to motion to vacate order for service by publication, order affirmed granting motion to strike out alleged appearance on behalf of the Russo-Asiatic Bank, and certified question answered.
See, also, 265 N. Y. 514,190 N. E. 298.
Appeal from Supreme Court, Appellate Division, First Department.
Maurice Léon and John J. Curtin, both of New York City, for appellant.
Borris M. Komar, of New York City, for respondent.
Joseph M. Proskauer, Philip A. Carroll, Otey McClellan, and J. Alvin Van Bergh, all of New York City, for National City Bank of New York amicus curiae.
Ralph M. Carson, William C. Cannon, and Franklin H. Mills, all of New York City, for Guaranty Trust Co. of New York amicus curiae.
Plaintiff brought this action in the Supreme Court, New York county, as an alleged general creditor of the defendant Russo-Asiatic Bank, a Pre-Soviet Russian banking corporation. She alleges the unpaid balance of a ruble checking account which she claims to have had with the Moscow office of Russo-Asiatic Bank prior to the Soviet revolution.
Alleging that she has no adequate remedy at law against Russo-Asiatic Bank, plaintiff demands the appointment of a receiver for the New York property of the bank, to distribute such New York property to the plaintiff and other creditors of the bank similarly situated.
She also alleges that the defendants National City Bank and Guaranty Trust Company hold property of the Russo-Asiatic Bank within the state of New York and it is with respect to this that the receiver is sought.
On September 8, 1933, plaintiff obtained an order for service of the summons in this action by publication on the defendant Russo-Asiatic Bank.
The attorneys who appear in this court in the name of Russo-Asiatic Bank, namely, Messrs. Evarts, Choate, Sherman & Léon, who purport to be retained by the liquidator appointed by the Chinese authorities for the branches of Russo-Asiatic Bank in China, and John J. Curtin, who purports to be retained by the liquidator appointed by the French courts for the Russo-Asiatic Bank which had removed to Paris, moved at Special Term to vacate the order for service by publication. It is only in their capacity as representatives of the Russo-Asiatic Bank that we may deal with them.
Plaintiff made a cross-motion to strike out the alleged appearance of Mr. Léon and Mr. Curtin on the ground that, even if authorized by the Chinese and French liquidators, they were not authorized to represent Russo-Asiatic Bank, because they had been retained not by Russo-Asiatic Bank, but by the Chinese and French liquidators appointed in China and France, respectively, for the branches of Russo-Asiatic Bank located in each of those countries; and that such nondomiciliary liquidators, respectively, merely control the Chinese and French assets of Russo-Asiatic Bank, but have no authority to appear in the New York courts with respect to New York assets.
The court granted plaintiff's cross-motion to strike out the special appearance of Mr. Curtin and Mr. Léon on behalf of Russo-Asiatic Bank, and denied said attorneys' motion to vacate the order for service by publication, presumably on the ground that these parties lacked authority to make such motion.
The Appellate Division, First Department, affirmed both the order granting plaintiff's motion to strike out the alleged appearance by Mr. Léon and Mr. Curtin (Appeal No. 2) on behalf of Russo-Asiatic Bank and the order denying said attorneys' motion to vacate the order for service by publication (Appeal No. 1).
The present appeals are from these two decisions of the Appellate Division, upon leave granted to appeal to this court upon the following certified questions.
With respect to the decision denying the authority of Messrs. Léon and Curtin (Appeal No. 2):
With respect to the decision denying motion to vacate the order for service of the summons by publication (Appeal No. 1):
‘1. Are the papers upon which the order for...
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...without costs, and motion granted, without costs. Question certified answered in the negative on the authority of Issaia v. Russo-Asiatic Bank, 266 N. Y. 37,193 N. E. 298. No opinion.POUND, C. J., and CRANE, LEHMAN, O'BRIEN, HUBBS, CROUCH, and LOUGHRAN, JJ., ...