Shipley Corp. v. Leonard Marcus Co., 11288.
| Citation | 214 F.2d 493 |
| Decision Date | 13 July 1954 |
| Docket Number | No. 11288.,11288. |
| Parties | SHIPLEY CORP. v. LEONARD MARCUS CO. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Thomas Raeburn White, Philadelphia, Pa. (James Hunter, III, Archer, Greiner, Hunter & Read, Camden, N. J., Leonard Lazarus, Jamaica, N. Y., C. L. Cushmore, Jr., White, Williams & Scott, Philadelphia, Pa., on the brief), for appellants.
Howard Engel, Jersey City, N. J. (Stein, Stein & Engel, Jersey City, N. J., on the brief), for appellee Leonard Marcus Co.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
With jurisdiction depending upon diversity of citizenship, the plaintiffs have attempted to plead in the District Court for the District of New Jersey a case appropriate for the rendition of a declaratory judgment under Section 2201 of Title 28 of the United States Code, as derived from the original Federal Declaratory Judgment Act.
The plaintiffs, three individuals and two corporations, are citizens of Maryland, New York and Delaware. Through stock holdings and corporate control and management they claim to have been associated in an enterprise involving the building and selling of certain apartment houses. The defendant Leonard Marcus Company is a New Jersey corporation which has now acquired these structures. The defendant, John Dahlhausen, a citizen of New Jersey, is the subcontractor who, under contract with one of the plaintiffs, Jonathan Woodner Co., the principal contractor, installed the heating equipment during the building of the apartments. It is concerning this heating equipment that the plaintiffs say justiciable controversies exist between them and each of the defendants.
They define their controversy with Leonard Marcus Company in terms of a suit which that corporation has filed against all of them, except Jonathan Woodner Co., in a state court in New York charging breach of warranties as to the construction and condition of the aforesaid heating equipment. As to Dahlhausen they say that if the heating equipment is not as some of them have warranted to Marcus, this is because Dahlhausen breached his undertaking to plaintiff Jonathan Woodner Co. in installing the equipment. The complaint leaves in doubt the status of the other plaintiffs to assert whatever rights Woodner may have against Dahlhausen. But however that may be, the plaintiffs join Dahlhausen as a defendant with a view to making him bear ultimate responsibility for any defect or inadequacy of the equipment he installed. Thus, the district court is asked both to determine the very issues between four of plaintiffs and Marcus which are raised by the pending New York suit and also to adjudge that Dahlhausen is obligated to defend and indemnify them against the Marcus claim.
This suit was filed on October 6, 1953. At that time the state action in New York, which had been filed in 1952, was at issue and had been set down for trial on October 19, 1953. However, it was represented to the New York court that if it would stay its hand the issues between the parties could and would be disposed of expeditiously in the federal suit. Thereupon, over the objection of Marcus, the New York court stayed its proceedings pending disposition of...
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