Kliaguine v. Jerome

• Decision Date: 08 July 1950
• Citation: 91 F. Supp. 809
• Parties: KLIAGUINE v. JEROME.
• Court: U.S. District Court — Eastern District of New York

91 F. Supp. 809

KLIAGUINE v. JEROME.

United States District Court E. D. New York.

July 8, 1950.

Sol S. Zuckerman, New York City, for plaintiff. Sol S. Zuckerman, Lester Samuels New York City, of counsel.

Elliot W. Isaacson, New York City, for defendant. Walter J. Boyles, New York City, of counsel.

GALSTON, District Judge.

This is a motion by defendant for an order granting leave to move for summary judgment and for an order granting summary judgment. The action is for recovery on a demand note. The facts are set forth in the opinion of this court, reported in 87 F.Supp. 629, denying an earlier motion by defendant for summary judgment.

Since the motion seeks relief from an interlocutory order, Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., is not applicable. That rule, by its terms, applies only to a "final judgment, order, or proceeding".

However, in Simmons Co. v. Grier Bros. Co., 1922, 258 U.S. 82 at page 88, 42 S.Ct. 196, at page 198, 66 L.Ed. 475, the Supreme Court declared that if the decree "be only interlocutory, the court at any time before final decree may modify or rescind it".

In Moore's Federal Rules and Official Forms, As Amended with Comments (1949), the following comment is made, at page 1176, with reference to Rule 60(b): "The addition of the qualifying word, `final', emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires. This is in accord with the principle of John Simmons Co. v. Grier Brothers Co. (1922) 258 U.S. 82 42 S.Ct. 196, 198, 66 L.Ed. 475 * * *."

In Marconi Wireless Telegraph Co. v. United States, 1943, 320 U.S. 1, 63 S.Ct. 1393, 87 L.Ed. 1731, the Supreme Court recognized the power of the lower court, at any time prior to entry of its final judgment, to reconsider any portion of its decision and reopen any part of the case. It was also recognized, however, that the matter was one within the court's discretion. If justified, therefore, there is authority in the court to grant this motion for leave to move for a summary judgment.

The defendant's affidavit in support of his new motion for summary judgment presents new facts, allegedly discovered subsequent to the denial of the previous motion. The affidavit states that the demand note in question was delivered pursuant to an oral agreement that it was not to become binding until the happening of a future event, viz., in the event that defendant died or was killed before using the money in the defendant's business. It is also stated that plaintiff is not the real party in interest, but that he acted only as the agent for his brother, one Alexander Kliaguine. Attached to the affidavit is a copy of a power of attorney from Alexander Kliaguine to plaintiff, authorizing plaintiff to act as Alexander Kliaguine's agent in the United States. There is nothing in the document, however, referring in any way to the transaction or transactions in issue here. The affidavit repeats at some length the contention made on the previous motion that the money in question was given not as a loan but as an investment in a joint venture between the parties.

Among the papers attached to the defendant's affidavit on the present motion are copies of an affidavit of plaintiff submitted to the Foreign Property Control Division of the Federal Reserve Bank in New York, a letter translated from the original Russian and purportedly written by plaintiff to defendant, and a letter written by plaintiff's attorney in California to defendant's assistant at defendant's business establishment in Long Island. These documents categorically deny that the money sued for was given to defendant as an investment in a joint venture, that the money belonged to plaintiff's brother, or that plaintiff was acting as his brother's agent in the matter involved in this action. Thus material questions of fact exist, requiring a trial for their determination.

On the question of the statute of limitations, defendant again argues that his letter of October 26, 1943 is not an acknowledgment of any loan or debt owed to plaintiff. As was noted in the opinion denying the previous motion, the letter makes...