Kohn v. Jacob & Josef Kohn, Inc.
| Decision Date | 09 April 1920 |
| Citation | 264 F. 253 |
| Parties | KOHN v. JACOB & JOSEF KOHN, Inc., et al. |
| Court | U.S. District Court — Southern District of New York |
Spier Whitaker, of Washington, D.C., for the motion.
Arthur Garfield Hays, of New York City, opposed.
LEARNED HAND, District Judge (after stating the facts as above).
The chief question raised is whether the right of capture was effectively exercised by the demand of the Alien Property Custodian on June 27, 1918, at which time the plaintiff was an enemy. The 'property' was a debt of which he was the obligee and the domestic corporation the obligor. Two questions arise: Was a debt within the scope of section 7 (c) of the act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec 3115 1/2d), on June 27, 1918? Was the demand of the Alien Property Custodian an effective capture, if it was?
On the date in question the section read as follows:
The question of the proper formalities for capture remains. The obligor is to 'transfer * * * or pay' the 'money,' 'if the President shall so require ' The President promulgated, under section 5 (a) of the act (section 3115 1/2c), certain rules on February 26, 1918. Rule 2 (a) prescribed a 'demand' by the Alien Property Custodian as the proper way to require the transfer, etc., and rule 2 (c) that such a demand--
'shall forthwith vest in the Alien Property Custodian such right, title, etc., in the money or other property demanded * * * as may be included in the demand.'
If the rule is valid, the demand effects the transfer of the property. A moment's reflection seems to me to make it clear that it must be so, else the statute puts a premium upon resistance and delay. The analogies of attachment and garnishment are directly in point. It cannot of course, have been the purpose of section 7 (c) to permit its purpose to be frustrated by recalcitrants, who might, by prolonging their contests, destroy the right of capture till peace was declared, when it would be too late. Section 17 gives the Alien Property Custodian his remedies to reduce to possession his title (Garvan v. $20,000 Bonds, 265 F. 477, . . . C.C.A. . . .), but that title must be complete by the symbolic act of capture. Probably the rule was unnecessary, but it was unquestionably valid.
Hence there can be no doubt that the...
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