Koscinski v. White

• Decision Date: 12 January 1923
• Docket Number: 390.
• Citation: 286 F. 211
• Parties: KOSCINSKI v. WHITE, Treasurer of the United States, et al.
• Court: U.S. District Court — Eastern District of Michigan

286 F. 211

KOSCINSKI v. WHITE, Treasurer of the United States, et al.

No. 390.

United States District Court, E.D. Michigan, Southern Division.

January 12, 1923

Arthur A. Koscinski, of Detroit, Mich., for plaintiff.

Earl J Davis, U.S. Atty., and Fred L. Eaton, Asst. U.S. Atty., both of Detroit, Mich., for defendant White.

TUTTLE District Judge.

This is a motion to dismiss a bill of complaint filed by one Leopold A. Koscinski, an attorney at law residing and practicing in this district, against the defendant White, as Treasurer of the United States, a resident of the District of Columbia and other defendants, citizens and residents of Czecho-Slovakia, and was brought for the purpose of recovering on an alleged contract for the payment of a certain sum to plaintiff for legal services rendered by him as stated in the bill.

The suit is based upon section 9 of the so-called Trading with the Enemy Act, being the Act of October 6, 1917, chapter 106, 40 Statutes at Large, 411 (Comp. St. 1918, Comp. St. Ann Supp. 1919, Sec. 3115 1/2e), as amended by the Act of June 5 1920, chapter 241, 41 Statutes at Large, 977. This section provides that: 'Any person * * * claiming any interest * * * in any money * * * paid to the Alien Enemy Custodian, * * * or to whom any debt may be owing from an enemy * * * whose property or any part thereof shall have been * * * delivered, or paid to the Alien Property Custodian, * * * may * * * institute a suit in equity in the Supreme Court of the District of Columbia or in the District Court of the United States for the district in which such claimant resides, * * * (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest * * * or debt so claimed, and if so established the court shall order the payment * * * to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States or the interest therein to which the court shall determine said claimant is entitled. If suit shall be so instituted, then such money or property shall be retained in the custody of the Alien Property Custodian, or in the treasury of the United States, as provided in this act, and until any final judgment or decree which shall be entered in favor of the claimant shall be fully satisfied by payment * * * by the defendant, or by the Alien Property Custodian, or Treasurer of the United States on order of the court.'

The material allegations in the bill of complaint, in addition to the foregoing references to the parties, are as follows: That in 1914, one Cohen died, in said eastern district of Michigan, having bequeathed certain sums of money, to be realized from the property owned by him at his death, to the said alien defendants, his will being duly probated in the probate court for Wayne county, in said district; that notice of the filing of said will for probate was forwarded to one Ernest Ludwig, residing in Cleveland, Ohio, the consul of the government of Austria-Hungary, of which country said alien defendants were then subjects and residents; that said consul, in accordance with the laws of the United States and the treaties between it and Austria-Hungary, was the official representative of his government in all matters concerning the rights of its subjects claiming any property in the United States as heirs of a resident of this country, his jurisdiction in such matters extending to the estates of decedents administered in said probate court; that in April of said year plaintiff received from said consul a written request to investigate the estate of the said decedent and to inform said consul relative to the merits of the case; that plaintiff promptly made such investigation and reported to said consul concerning the assets of said estate and the provisions of said will, also advising such consul that if he so desired plaintiff would appear in the matter as the representative of said consul, for the purpose of taking care of the interests of such legatees; that at the same time he asked said consul to obtain powers of attorney from each of said legatees, so that their respective bequests might be collected and received; that a few days thereafter plaintiff received a letter from said consul, stating that he had written to his home authorities to obtain a power of attorney from the legatees, and that he would be obliged if plaintiff would in the meanwhile take care of their interests; that thereafter, and until the said estate was closed, plaintiff performed legal services 'in behalf of the said consul, Ernest Ludwig, and in behalf of the heirs,' to protect and preserve their interests in said estate; that for several years prior to April, 1914, plaintiff had represented the said consulate in similar matters, and that he had an agreement with the said consulate to charge the sum of 5 per cent. of the total amount of the estate for his services; that the final account of the executors in the said estate, as allowed by said probate court February 15, 1918, showed a balance due to the said defendant heirs, 'being the heirs whom this plaintiff represented on behalf of the said consul,' of about $22,000, and that, therefore, the amount due to plaintiff for his said services was 5 per cent. of said sum; that, in view of the war then existing between the United States and Austria-Hungary, the money belonging to said heirs was paid by the executors of said estate to the Alien Property Custodian, and by the latter to the Treasurer of the United States, and that plaintiff then filed a notice of his claim with the proper government official and has done all that was required of him by this statute prior to bringing this suit.

The bill of complaint prayed for an order requiring the defendants to pay to plaintiff the money so claimed to be due him and that such amount be deducted by the defendants from the shares of the said alien heirs, and for general relief.

In the motion to dismiss the bill of complaint, filed by the defendant White as Treasurer of the United States, it is averred that it appears from said bill that the claim asserted by plaintiff arose out of transactions between the latter and said consul, and that whatever amount plaintiff was entitled to was owing by such consul. The motion also alleges that it appears from the bill of complaint that plaintiff is not entitled to the relief prayed.

Plaintiff has filed an affidavit in opposition to said motion to dismiss, in which affidavit he admits that his claim arose out of certain transactions between him and said consul but he asserts that all services rendered by him were performed for said Ernest Ludwig wholly in his official capacity as consul, and that the latter, in his official capacity as a representative of his government and as the legal representative of the alien defendants, intrusted the matter to plaintiff; that after he had been retained by the said consul the latter forwarded to plaintiff, from all of said alien defendants, powers of attorney constituting and appointing 'the Imperial and Royal Austro-Hungarian consulate at Cleveland, Ohio,' their 'true and lawful attorney,' 'in their name, place and stead, to do any and all acts or things whatsoever proper or necessary for the purpose of collecting damages, insurance benefits, or any other benefits arising by reason of the death of' the aforementioned decedent, 'the said Ernest Ludwig attorney in fact, being given full power to represent each of said heirs in all courts and for all purposes, and to receive and receipt for the distributive shares in the estate of said deceased. ' In this affidavit plaintiff also alleges that in consequence of rendering...