De Sairigne v. Gould

• Decision Date: 25 February 1949
• Parties: DE SAIRIGNE v. GOULD.
• Court: U.S. District Court — Southern District of New York

83 F. Supp. 270

DE SAIRIGNE v. GOULD.

United States District Court S. D. New York.

February 25, 1949.

Samuel N. Leiterman, of New York City, for plaintiff.

Cahill, Gordon, Zachry & Reindel and Roberts, Austin, Muller & McCook, all of New York City (Mathias F. Correa, Jerome Doyle, and Richard H. Kuh, all of New York City, of counsel), for defendant.

COXE, District Judge.

This is a motion by the defendant to dismiss this action on the ground of forum non conveniens.

The complaint contains three causes of action. It is alleged in the first cause of action that plaintiff is a citizen of the Republic of France and that defendant is a citizen of the State of New York and the United States of America, presently residing in France but having an office for the regular transaction of business in New York City; that about February 20, 1944, at Juan les Pin, France, defendant made and delivered to plaintiff his check upon the United States Trust Company of New York, to plaintiff's order, for the sum of $400,000; that plaintiff endorsed the check and presented it to the Trust Company for payment, but payment was refused, of all of which defendant was duly notified; that, under the laws of France, the check "constituted an undertaking, or agreement, or admission between the parties" thereto, "which took the place of, and superseded, any prior arrangement or agreement between said parties," and that, by reason thereof, defendant "became obligated to pay" to plaintiff $400,000, "regardless of any prior agreement between the said parties, and that said obligation became binding in law, even if the making and delivery of said check were a gratuitous payment or gift, or intended as a gift."

In the second cause of action it is alleged that plaintiff is a citizen of France and was, at all the times mentioned, a resident of France but now resides in New York City; that defendant, although a citizen of the United States, has resided for many years, and still continues to reside, in France; that, for some time prior to February 20, 1944, while defendant was residing in France, "he was apprehensive and fearful that the German authorities and German Armies which were then occupying France, might arrest, intern or deport him, and so informed plaintiff"; that plaintiff thereupon, at his special instance and request "performed certain work, labor and services" for him, which included giving him "shelter, asylum, comfort and protection in her home," and continued to do so until he was no longer in such danger; that defendant is a man of great wealth, whose annual income was over $500,000; that he informed plaintiff that her services were valued by him at $400,000; that he assumed and agreed to pay her that amount and in discharge and payment of such obligation he gave her the check for $400, 000 referred to; and that about February 25, 1947, and without just cause or any justification, he notified the Trust Company not to pay the check, whereupon it refused to do so. Then follow the same allegations as to the French law which are contained in the first cause of action.

The third cause of action relates to plaintiff's claim against the United States Trust Company. As the complaint has already been dismissed as to it, its allegations are of no importance upon the motion.

It also appears from the papers submitted upon the motion that defendant has resided in France for many years for purposes of his health and that his attorney has been informed that he is under the daily care of doctors in France, who have advised him that travel to the United States in the foreseeable future is impossible, and that defendant has substantial assets in France which are more than sufficient in amount to satisfy any judgment which plaintiff may obtain. Although these latter statements are based only upon the attorney's information and belief, they may properly be considered as facts upon this motion, for they are not disputed. See Koster v. Lumbermen's Mutual Casualty Co., 330 U.S. 518, 531, 67 S.Ct. 828, 91 L.Ed. 1067.

Process was not served upon defendant personally, but upon his attorney in fact in New York City, and defendant thereafter appeared and made the present motion.

Thus, the action is brought in a United States Court by an alien who, at all pertinent times, was a resident of France, although it is alleged in the second cause of action that she is now residing in the United States; the defendant is a citizen of the United States, who, at all pertinent times, as well as at the time of bringing suit, was also a resident of France; the prayer is for damages for breach of an agreement, also made in France. Plaintiff's right of recovery is asserted to arise, not under the laws of the United States or of any State thereof, but under the laws of France, which, as they are pleaded in the complaint, are quite different from, and inconsistent with, our laws....