Marcus Brown Holding Co. v. Pollak

• Decision Date: 13 November 1920
• Citation: 272 F. 137
• Parties: MARCUS BROWN HOLDING CO. v. POLLAK et al.
• Court: U.S. District Court — Southern District of New York

272 F. 137

MARCUS BROWN HOLDING CO. v. POLLAK et al.

United States District Court, S.D. New York.

November 13, 1920

J. A Seidman, of New York City, for complainant.

David L. Podell, of New York City, for defendant Pollak.

John Caldwell Myers, of New York City, for defendant Swann.

Samuel A. Berger, of New York City, for Attorney General of State of New York.

George L. Ingraham and Francis M. Scott, both of New York City, for Real Estate Investors of New York.

William D. Guthrie, Julius Henry Cohen, Elmer G. Sammis, and Bernard Hershkopf, all of New York City, for Joint Legislative Committee on Housing.

Before MACK and MANTON, Circuit Judges, and LEARNED HAND, District judge.

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

The motions to dismiss necessarily would raise the constitutionality of the 'Emergency Legislation,' even though we were to hold that there was no jurisdiction in equity. The bill could be reframed under section 274a of the Judicial Code (Comp. St. Sec. 1251a), and at least as to Pollak proceed as an action of ejectment. We should therefore, feel obliged to pass upon the merits of the contention, were it not for a defect-- absolute so far as we can see-- in our substantive jurisdiction; which is that the amount in controversy does not equal $3,000 above interest and costs. The formal allegation to that effect does not, of course, bind us when the bill or declaration contradicts it. Vance v. W.A. Vandercock Co., 170 U.S. 468, 18 Sup.Ct. 645, 42 L.Ed. 1111; North American T. & T. Co. v Morrison, 178 U.S. 262, 20 Sup.Ct. 869, 44 L.Ed. 1061.

There is possibly at stake in this controversy nothing more than the plaintiff's loss by Pollak's continued occupation for 25 months, because after that time the 'moratorium,' so to speak, expires and all landlords may re-enter. The plaintiff itself asserts that the value of the term for that time will be $2,300 yearly. If the 'reasonable' rent which Pollak must pay is not less than $1,600, the plaintiff's loss will be $1,458.33. It is not, and probably could not be, alleged that the reasonable rent was less, and in any case Pollak is content to go on at the old rent. If it be urged that the plaintiff will also lose rent under the Griffen lease for 11 months after November 1, 1922, the answer is that no one can now say that the possession, which the plaintiff will then have, will not be worth as much as $2,300 at that time.

To this the plaintiff answers that it is the value of the right which it seeks to protect which controls, under such cases as Berryman v. Whitman College, 222 U.S. 334, 32 Sup.Ct. 147, 56 L.Ed. 225, or Glenwood, etc., Co. v Mutual, etc., Co., 239 U.S. 121, 36 Sup.Ct. 30, 60 L.Ed. 174. That rule has a general application and applies here too, but the right to be protected is not the fee of the apartment, but possession during the operation of the statutes.

As to the proposed trespass of Swann there are two answers: First, it does not appear that Swann has threatened six prosecutions, or indeed anything more than a single one. Second, in any event the proposed prosecution is confessedly only to prevent the plaintiff from disturbing Pollak and in protection of Pollak's wrongful holding over. The plaintiff's right to be protected remains as before nothing but the possession which he must leave in Pollak's hands for 25 months. Therefore, in any aspect the amount in controversy is not $3,000, and this court is without jurisdiction if that allegation is necessary.

In this aspect the case turns entirely upon whether the jurisdiction of the court must be based upon subdivision 1 of section 24 of the Judicial Code (Comp. St. Sec. 991 (1)), or whether it may rest upon subdivision 14 of the same section (Comp. St. Sec. 991 (14)). Under subdivision 1 jurisdiction is given to this court 'of all suits of a civil nature, at common law or in equity * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States. ' Subdivision 14 of the section, so far as relevant, gives us jurisdiction 'of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law * * * of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States. ' The original form of this subdivision is to be found in the Civil Rights Bill of 1866 (14 St.at L.p. 27, Sec. 3, c. 31) which was passed before the Fourteenth Amendment was adopted. The grant of jurisdiction given to this court reappeared as subdivision 12 of section 563 of the Revised Statutes (Comp. St. Sec. 991 (14)), and that given to the Circuit Court in subdivision 16 of section 629 (Comp. St. Sec. 991 (14)) and the substantive provisions in sections 1977 and 1979 of the Revised Statutes (Comp. St. Secs. 3925, 3932). By chapter 114 of the Laws of 1875 (18 St.at L. 335 (Comp. St. Secs. 3926-3930)), the civil rights secured by sections 1977 and 1979 were extended, though the first two sections of that act were held unconstitutional by the Supreme Court in the Civil Rights Cases, 109 U.S. 3, 3 Sup.Ct. 18, 27 L.Ed. 835.

In the Virginia Coupon Cases, 114 U.S. 317, 5 Sup.Ct. 928, 962, 29 L.Ed. 202, subdivision 16 of section 629 of the Revised Statutes was held not to apply under the following circumstances: The plaintiff sued on the case for a wrongful tax levy and alleged that he had paid his taxes in coupons of Virginia bonds and that the public officers had refused to accept such coupons, in violation of article 1, Sec. 10, of the Constitution, i.e., the impairment clause. The court held that his right so to pay in coupons was not a right directly secured by the Constitution and that the only mode of raising that question was by writ of error from the Supreme Court to judgments of the state courts, in which his constitutional rights were disregarded, or under the precursor of subdivision 1 of article 24 of the present Judicial Code, upon which there was a jurisdictional limit dependent upon the amount in controversy.

In Holt v. Indiana Mfg. Co., 176 U.S. 68, 20 Sup.Ct. 272, 44 L.Ed. 374, the same rule was extended to a case where the plaintiff complained of the unconstitutional assessment of taxes. In that case the court held that where state legislation deprived a party of his property without due process of law, the only jurisdiction of this court was under subdivision 1 of section 24 of the Judicial Code. See, also, Simpson v. Geary (D.C.) 204 F. 507; Salander v. Tacoma (D.C.) 208 F. 427.

In Truax v. Raich, 239 U.S. 33, 36 Sup.Ct. 7, 60 L.Ed 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 283, the plaintiff successfully relied on subdivision 14 of section 24 under the following circumstances: He was an alien resident in the state of Arizona and complained that his employer threatened to discharge him under the coercion of an act of the state which forbade the employment...