Republic of Italy v. De Angelis

• Decision Date: 20 January 1953
• Docket Number: No. 123,Docket 22519.,123
• Citation: 206 F.2d 121
• Parties: REPUBLIC OF ITALY v. DE ANGELIS et al.
• Court: U.S. Court of Appeals — Second Circuit

206 F.2d 121 (1953)

REPUBLIC OF ITALY v. DE ANGELIS et al.

No. 123, Docket 22519.

United States Court of Appeals, Second Circuit.

Argued December 5, 1952.

Decided January 20, 1953.

On Petition for Rehearing August 11, 1953.

Edward Garfield, New York City (Robert H. Wrubel, New York City, of counsel), for appellant.

Hahn & Golin, New York City (Alfred W. Bressler, New York City, of counsel), for defendants Anthony and Virginia DeAngelis, doing business as the DeAngelis Packing Co.

Before SWAN, Chief Judge, and CHASE and CLARK, Circuit Judges.

CHASE, Circuit Judge.

In November 1948, The DeAngelis Packing Company, a partnership composed solely of Anthony DeAngelis and his wife Virginia, owned a new meat packing plant at North Bergen, New Jersey. That company, to be hereinafter called the partnership, then leased the plant for a term of ten years to The DeAngelis Packing Company, Inc., a New Jersey corporation which had been recently organized to engage in the business of processing and packing meat, including the refining and processing of tallow of which 1,000,000 pounds per week could be rendered. Anthony DeAngelis, the controlling stockholder, was the president and duly authorized agent of the corporation during the time in which the events took place with which this appeal is concerned. The corporation for a while did an extensive business, its sales of its products for approximately one year immediately preceding December 1, 1950 being in excess of $28,000,000. Adolf Gobel, Inc., is a New York corporation which during the period here involved was also engaged in the meat packing business and will be referred to as Gobel.

In September 1950, the corporation executed three contracts with a representative of the plaintiff, The Italian Technical Delegation, to be now called the plaintiff, under which the corporation sold to the plaintiff 3900 tons of nonedible tallow for delivery in October, November and December of that year. In November 1950, the corporation in the same way sold to the plaintiff an additional 1500 tons of tallow for delivery during December 1950 and January and February 1951. None of the tallow was delivered except 300 tons in October 1950; and the plaintiff, as a consequence of the failure of the corporation further to perform its contracts, was obliged to purchase tallow on the market to the extent to which the corporation defaulted, and the market prices which it had to pay exceeded the contract prices by more than $800,000. It purchased a large quantity of this tallow from Gobel.

In April 1950, DeAngelis purchased enough Gobel stock to give him control of that corporation. He financed the purchase by borrowing $325,000 from the Public National Bank & Trust Company of New York; and the stock he bought, together with other collateral of his, was deposited with the bank to secure the loan and his other obligations to the bank. At this time the bank also received the continuing guarantee of the partnership for all of DeAngelis' obligations to it both past and future.

In October 1950, the partnership cancelled the lease of the meat packing plant to the corporation and sold the plant, subject to outstanding mortgages, to Gobel. It received $225,000 in cash, four promissory notes totalling $90,000 and 260,000 shares of Gobel stock. On October 25, 1950, the partnership paid the bank $200,000 in reduction of the loan the bank had made to DeAngelis and pledged 185,000 shares of its Gobel stock as security for its guarantee of his obligations to the bank. On November 24, 1950, the partnership pledged its remaining 75,000 shares of Gobel stock to certain trustees as collateral security for DeAngelis' and his wife's joint and several guarantee of the obligations of the DeAngelis corporation.

After DeAngelis acquired stock control of Gobel, it also borrowed from the same bank. Its obligation was guaranteed by DeAngelis; and the partnership did not, before his guarantee was given, cancel its continuing guarantee of his bank obligations.

A certificate for the dissolution of the corporation was executed on November 17, 1950 and duly filed in accordance with New Jersey law on December 29, 1950. It did no business thereafter.

Invoking the diversity jurisdiction of the court, the plaintiff filed a complaint in three counts against DeAngelis and his wife, individually and as co-partners, and Gobel to recover the damages it had sustained because of the breach by the corporation. The latter, having been dissolved pursuant to New Jersey law, was not made a party.

A warrant of attachment was granted under § 903, subd. 3, of the New York Civil Practice Act against the property of DeAngelis held by the bank and against the property of the partnership held by the bank and the trustees. The attachment against the property of the partnership was granted on a showing by the plaintiff that the partnership had assigned, disposed of, or secreted its property with intent to defraud its creditors, and also on the ground that it had fraudulently incurred obligations and made fraudulent transfers of its property within the meaning of §§ 273, 275, 277 and 278 of the New York Debtor and Creditor Law. The District Court later, on motion, vacated the attachment against the partnership's property, and it is from this order that the plaintiff now appeals. Such an order is appealable. Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206.

The only count of the complaint in which the partnership is named as a defendant is the second. It sets forth a claim that the partnership, Virginia DeAngelis, Anthony DeAngelis (named as a conspirator but not sued in this count) and Gobel, acting in concert, did wilfully and without justification induce the corporation to break its contracts with the plaintiff. It is also alleged that the partnership conspired with the above mentioned persons and the corporation to induce the plaintiff to enter into the contracts by means of fraudulent misrepresentations.

The court permitted the plaintiff in opposing the motion to vacate to supplement its allegations in the complaint with affidavits; and the facts, as above summarized, are taken from the record as thus made out by the plaintiff. The notice of motion stated six grounds, of which the third was: "The papers upon which said warrant of attachment was granted fail to show sufficient evidence of the participation by defendants Anthony DeAngelis and Virginia DeAngelis, co-partners doing business as DeAngelis Packing Company, in any wrongdoing in the second cause of action in the complaint." The motion was granted on that ground, which made it unnecessary to deal with the other questions presented. We agree.

Before a warrant of attachment may be granted under § 903 of the New York Civil Practice Act there must be more support for it than a complaint sufficient to state a cause of action against a defendant whose property the plaintiff seeks to attach. In addition to that there must be enough shown to establish prima facie the facts on which the plaintiff relies as the basis for his alleged cause of action. Ecco High Frequency Corporation v. Amtorg Trading Corp., Sup., 81 N.Y.S.2d 610, affirmed 274 App.Div. 982, 85 N.Y.S.2d 304.

Yet neither the allegations in the second count of the complaint nor the supplemental affidavits, either alone or together, show prima facie that the partnership, itself or in concert with others, fraudulently induced the plaintiff to enter into the contracts with the corporation or that it intentionally and unjustifiably induced the corporation to break its contracts with the plaintiff. The only acts of the partnership that are shown are (1) the cancellation of the lease of its Bergen plant to the corporation and (2) the sale of that plant to Gobel. There is no evidence to show prima facie that Virginia DeAngelis knew of the contracts which the plaintiff had with the corporation. And even if it can be said that the partnership is chargeable with knowledge of their existence, there is nothing to show that the cancellation of the lease prevented the corporation from fulfilling the contracts. They were for the sale, not the rendering, of a quantity of tallow, and, for all that appears, the corporation was free to acquire the tallow needed for the sale by its purchase on the open market.

The District Court denied a motion to vacate an attachment on the property of Anthony DeAngelis on the ground that there had been a prima facie showing that DeAngelis induced the plaintiff to enter into the contracts by means of fraudulent misrepresentations. It is now urged that he was also acting on behalf of the partnership when he made the misrepresentations, and that the partnership was therefore in a conspiracy with him fraudulently to induce the plaintiff to make the contracts with the corporation. We are asked to infer that DeAngelis was acting on behalf of the partnership because the partnership was benefitted by his acts. It is argued that this benefit was realized because, since the corporation was being dissolved, the contracts would not be performed by it but were to be adopted by Gobel if they proved favorable and otherwise ignored. This advantage to Gobel was to inure to the benefit of the partnership, since it was prospectively a substantial owner of Gobel stock. However, the existence of contracts between the plaintiff and the corporation would certainly give Gobel no rights under those contracts on dissolution of the corporation. The plaintiff did ultimately buy a large quantity of tallow from Gobel, but there is nothing to show that the plaintiff was not free to buy tallow elsewhere or that Gobel could not have sold its tallow to someone else as advantageously. Since the acts of DeAngelis did not benefit Gobel, they did not benefit the partnership; and there is, therefore, no basis for inferring that DeAngelis was acting on behalf of the partnership in procuring...