Massachusetts Mut. Life Ins. Co. v. Grossman
| Decision Date | 17 October 1933 |
| Citation | 4 F. Supp. 990 |
| Parties | MASSACHUSETTS MUT. LIFE INS. CO. v. GROSSMAN et al. |
| Court | U.S. District Court — Southern District of New York |
Cabell, Ignatius & Lown, of New York City (James M. Lown, of New York City, of counsel), for plaintiff.
Javits & Javits, of New York City (Selig J. Leviton, of New York City, of counsel), for Grossman, trustee.
The motion to dismiss will be granted on jurisdictional grounds unless plaintiff amends complaint within twenty days of entry of order hereon, and meantime the temporary injunction will remain in force.
I. An interpleader suit involving a trustee in bankruptcy is not an interference with, and cannot mature into any charge on, the assets, for it is merely an invitation to come in and get some more assets if the trustee is entitled thereto. It does not, therefore, come within the principle of Vass v. Conron Bros. Co., 59 F.(2d) 969, 971 (C. C. A. 2), and leave to interplead trustee need not be secured from the court of bankruptcy which appointed him. This motion must, therefore, turn on subject-matter jurisdiction.
II. Under the provisions of title 28 United States Code, § 41 (26), 28 USCA § 41 (26), giving jurisdiction to United States courts in bills of interpleader by insurance companies, jurisdiction is based on the fact that "two or more adverse claimants, citizens of different States, are claiming to be entitled to such insurance. * * *"
Where jurisdiction is based on diversity of citizenship and a trustee in bankruptcy is involved, it is the citizenship of the bankrupt and not of the trustee which is material. Bush v. Elliott, 202 U. S. 477, 483, 484, 26 S. Ct. 668, 50 L. Ed. 1114. The allegation here as to the citizenship of the trustee is, therefore, inconclusive as to subject-matter jurisdiction, and while it should remain, the amendment of the complaint should set forth fully all the facts as to the citizenship of the bankrupt, and, if a firm, as here, of its partners.
III. Whilst on a motion to dismiss for want of jurisdiction in face of complaint, I only look to that pleading. I have affidavits before me herein which show:
1. That the firm of Brooks & Co. was a New Jersey partnership composed of George S. Brooks and Charles Lekus, deceased, the insured.
2. That George S. Brooks, the surviving partner, was and is a citizen and resident of Elizabeth, N. J.
3. That Charles Lekus, a citizen of New York State, has died since the bankruptcy proceeding began.
4. That the claim, in respect...
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Eagle, Star & British Dominions v. Tadlock
...under the 1926 amendment are pertinent to the enactment as it stands today. We consider these cases. In Massachusetts Mutual Life Insurance Co. v. Grossman (D.C.N.Y. 1933) 4 F.Supp. 990, it is said that under the 1926 amendment "jurisdiction is based on the fact that `two or more adverse cl......
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...claim that the assignments were fraudulent was an invitation to her to come in and participate in the suit. Massachusetts Mutual Life Insurance Co. v. Grossman, D.C. 4 F.Supp. 990. Bringing an action in interpleader does not change the nature of the action. Cf. Sanders v. Armour Fertilizer ......
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...919 8 Analogous types of action have been permitted to be maintained in Re Whitney, 2 Cir., 113 F.2d 426; Massachusetts Mutual Life Insurance Co. v. Grossman, D.C., 4 F.Supp. 990; Smith v. Folsom, 190 Ga. 460, 9 S.E.2d 824. See, too, Remington, on Bankruptcy (4 Ed.) ...