Markham v. Taylor

Citation70 F. Supp. 202
PartiesMARKHAM, Allen Property Custodian, v. TAYLOR et al.
Decision Date21 January 1947
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

John F. X. McGohey, U. S. Atty., of New York City (Thomas G. Donlan, Asst. U. S. Atty., of New York City, and James D. Hill, Dept. of Justice, of Washington, D. C., of counsel), for Alien Property Custodian.

Schwartz & Frohlich, of New York City (Herbert P. Jacoby, of New York City, of counsel), for defendant Deems Taylor, etc.

A. Walter Socolow, of New York City (A. Walter Socolow and Alexander D. Diamond, both of New York City, of counsel), for defendant Henry M. Propper.

COXE, District Judge.

These are motions (1) by the plaintiff, and (2) by the defendant Propper as Receiver of an Austrian cooperative society known as AKM, for judgment on the pleadings, or in the alternative for summary judgment, with respect to Count No. 2 of the complaint.

The action is brought by the plaintiff, Alien Property Custodian, to recover different sums alleged to be owing by the defendant, American Society of Composers, Authors & Publishers (hereinafter referred to as ASCAP), to three European performing rights societies, respectively. The complaint contains three separate counts, each relating to the sum alleged to be owing by ASCAP to one of these three European societies. Count No. 2 concerns only AKM, the Austrian society for which the defendant Propper is the receiver, and as to that count it is alleged that ASCAP is now holding for AKM the net sum of $62,809.85.

The plaintiff in his motion seeks no affirmative relief against ASCAP but merely asks an adjudication that the defendant Propper as receiver has no right, title or interest in or to the funds held by ASCAP for AKM.

The facts are not in dispute, and may be summarized briefly as follows:

ASCAP is an unincorporated association in New York City engaged in the business of granting licenses and collecting royalties for the public performance of the musical works of its members, and allotting and distributing such royalties. Prior to December 31, 1938, AKM was a registered cooperative society with limited liability, organized under Austrian law and engaged in Austria in the same character of business as ASCAP.

On January 1 1933, ASCAP entered into a written contract with AKM under which AKM granted to ASCAP the exclusive right to license in the United States and its possessions the non-dramatic public performance for profit of certain musical works, the performing rights of which then were or which during the term of the agreement might be vested in or controlled by AKM. ASCAP agreed to collect from its licensees royalty payments for such public performances, and, on or about the 30th day of September succeeding the close of each calendar year, to account to AKM for collections made for the preceding calendar year, and to remit to AKM the proceeds thereof after deduction of commissions and expenses. This agreement remained in force until December 31, 1938, and the sum of $62,809.85 involved in Count No. 2 is the alleged balance of the collections made by ASCAP for the account of AKM to and including December 31, 1938, after deduction of commissions and expenses.

On June 9, 1941, one Franz Sobotka, a national of Austria, commenced an action in the New York Supreme Court, New York County, against AKM, alleging that it was a corporation organized and existing under the laws of Austria and had been liquidated and had assets within the State of New York, and praying for the appointment of a receiver of such assets pursuant to Section 977-b of the Civil Practice Act of New York. In that action the defendant Propper, on an ex parte application, was appointed on June 12, 1941, temporary receiver of the property and assets of AKM within the state of New York.

On June 14, 1941, Executive Order No. 8389, 12 U.S.C.A. § 95a note, which had originally been promulgated by the President on April 10, 1940, was, with amendments, made applicable to Austria (6 F.R. 2897). Under this order the transfer of any property of Austrian nationals was prohibited unless authorized by the Secretary of the Treasury. On July 9, 1941, Propper served on ASCAP written notice of his appointment as temporary receiver, together with a demand for the payment of the funds of AKM held by ASCAP, and on July 29, 1941, Propper as temporary receiver commenced an action in the State court to recover such funds. This action is still pending undetermined in the State court. On September 29, 1941, upon default of AKM, final judgment was entered against it in the receivership action, and Propper was appointed permanent receiver of the property and assets of AKM within the State of New York.

On September 4, 1943, the plaintiff, by vesting order No. 2097 (8 F.R. 16463), determined that the funds held by ASCAP for AKM were the property of AKM, and vested in himself all right, title, interest and claim in and to such funds. On September 11, 1943, the plaintiff made written demand on the defendant ASCAP for the funds held for AKM, and when this demand was refused the plaintiff commenced the present action. The Secretary of the Treasury has at no time licensed or otherwise authorized the transfer of the AKM funds held by ASCAP to the defendant Propper as receiver.

The question is thus presented whether the defendant Propper as receiver of the New York assets of AKM has any right, title or interest in or to the funds held by ASCAP for AKM. This is a question which this court has jurisdiction to determine. See Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296. It is the contention of the defendant Propper that he acquired title to these funds upon his appointment as temporary receiver on June 12, 1941, but in any event upon his appointment as permanent receiver on September 29, 1941.

The defendant Propper was appointed temporary receiver, and later permanent receiver, in the state court in an action brought against AKM under section 977-b of the New York...

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9 cases
  • Propper v. Clark
    • United States
    • United States Supreme Court
    • June 20, 1949
    ...on the pleadings, entered a judgment declaring that the petitioner had no right, title or interest in the claim in question, Markham v. Taylor, 70 F.Supp. 202, and later, a second judgment directing ASCAP to pay the debt to the Custodian. The United States Court of Appeals for the Second Ci......
  • Clark v. Taylor
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 15, 1947
  • Estate of Tischler
    • United States
    • California Court of Appeals
    • September 20, 1971
    ...with title, and was entitled to possession of, the assets of nonresident Rumanian aliens, for benefit of the United States. (Markham v. Taylor (1947) 70 F.Supp. 202, app. dis. Clark v. Taylor, 163 F.2d 940, affd. Clark v. Proper, 169 F.2d 324, affirmed 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. ......
  • Bernstein v. NV NEDERLANDSCHE-AMERIKAANSCHE, ETC.
    • United States
    • U.S. District Court — Southern District of New York
    • March 5, 1948
    ...appointment of a receiver by a New York court. This was specifically held in Markham v. Deems Taylor et al. and Henry M. Propper as Receiver of the Property and Assets in New York of A.K.M., D.C., 70 F.Supp. 202, appeal dismissed sub. nom. Clark v. Taylor, 2 Cir., 1947, 163 F.2d 940; final ......
  • Request a trial to view additional results

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