Menashe v. Sutton
| Decision Date | 10 May 1950 |
| Parties | MENASHE v. SUTTON et al. |
| Court | U.S. District Court — Southern District of New York |
Ferris & Adams, New York City, for plaintiff.
Samuel Hochstein, New York City, Mordecai Konowitz, New York City, of counsel, for defendants.
"This tangled case" continues to snag as it ravels. U. S. ex rel. Sutton v. Mulcahy, 2 Cir., 1948, 169 F.2d 94, 96. It has already received considerable judicial attention. See Menashe v. Sutton, D.C. S.D.N.Y.1947, 71 F.Supp. 103; U.S. ex rel. Sutton v. Mulcahy, supra. Several other motions in this action are now pending before other judges.
The present motion by the defendants seeks to undercut all that has been done. Its object is to set aside a judgment made on July 18, 1947, appointing I. B. Oseas as receiver of the partnership assets of Menashe and Sutton in this jurisdiction, ancillary to a proceeding pending in the Circuit Court of Hawaii. The theory of the motion is that the judgment was void ab initio. Two grounds are given: (1) the court was without jurisdiction to make the judgment because there was no diversity of citizenship between the parties; and (2) the judgment as well as the order which appointed the temporary receiver were procured by fraud on the court, the fraud consisting of plaintiff's assertion that defendants were residents of the Territory of Hawaii.
The defendants' brief asserts that the plaintiff was a resident and citizen of New York and that the defendants were likewise residents and citizens of New York. It further declares that the plaintiff concedes these propositions and that they are not in dispute. But nowhere in the papers do I find a concession by the plaintiff as to the New York citizenship or residency of defendants.
At this point I assume that the complaint adequately alleged that plaintiff was a citizen of New York and that defendants were citizens of the Territory of Hawaii. I make this assumption because down to the moment when the defendants filed their supplemental memorandum on this motion, all the parties so regarded the complaint. See, for instance, footnote 1 on page 95 of 169 F.2d of U. S. ex rel. Sutton v. Mulcahy, supra, where Judge Swan says of the complaint: "Thus there was diversity of citizenship under 28 U.S.C.A. § 41(1) 1948 Revised Judicial Code, 28 U.S.C.A. § 1332, if the 1940 amendment is valid."
The 1940 amendment, which in effect defined a "state" for purpose of diversity jurisdiction to include the District of Columbia and the Territories, has since been upheld by the Supreme Court in so far as the District is concerned. National Mutual Insurance Company v. Tidewater Transfer Co., Inc., 1949, 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556. I shall assume it also valid for Territories since the defendants do not any longer challenge the validity of the amendment.
It was evidently under the assumption that the complaint adequately alleged diversity of citizenship that the defendants filed answers wherein they denied the existence of diversity and alleged that they were citizens of New York. These answers were withdrawn and the defendants moved for entry of judgment over the opposition of the plaintiff. By withdrawing their answers and moving for judgment the defendants have admitted the fact of diversity of citizenship, the allegation of which they, and every one else, assumed was in the complaint.
It now appears for the first time that defendants would disturb this assumption. In their supplemental memorandum on this motion they call attention to the language of the complaint and point out that in fact it is not therein alleged that plaintiff is a citizen of New York and that defendants are citizens of Hawaii, but merely that the parties are "residents and inhabitants" of New York and Hawaii respectively.
However, this failure to allege citizenship is not a fatal defect. Quite evidently it is a mere oversight of which neither party nor any of the several judges who have considered the pleadings has taken note. Every one concerned assumed, with the cooperation of the defendants, that the complaint alleged diversity within the terms of the statute. The only issue tendered was to the fact but not to the adequacy of the allegation. Under such circumstances, I believe that the complaint may be corrected nunc pro tunc. 28 U.S....
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