Steingut v. National City Bank of New York, 1607.

• Decision Date: 10 January 1941
• Docket Number: No. 1607.,1607.
• Citation: 36 F. Supp. 486
• Parties: STEINGUT et al. v. NATIONAL CITY BANK OF NEW YORK.
• Court: U.S. District Court — Eastern District of New York

36 F. Supp. 486

STEINGUT et al. v. NATIONAL CITY BANK OF NEW YORK.

No. 1607.

District Court, E. D. New York.

January 10, 1941.

Natanson, Pack & Scholer, of New York City (Joseph Day Lee, of New York City, of counsel), for plaintiffs.

Shearman & Sterling and McClellan & Shrewsbury, all of New York City (MacIlburne Voorhies, of New York City, of counsel), for defendant.

MOSCOWITZ, District Judge.

This is a motion "for an order remanding this cause to said Supreme Court".

Although the plaintiffs had due notice of defendant's objection to the form of the notice of motion, nothing has been done by them to correct it. The notice of motion does not comply with Rule 7 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c.

Under Rule 7, Subdivision (b) 1, of the Federal Rules of Civil Procedure the moving party "shall state with particularity the grounds therefor" of the motion. The requirement of this rule causing the moving party to state "with particularity the grounds therefor" was not intended to be a matter of form but was real and substantial. The court would ordinarily excuse the failure to comply with this rule if it were inadvertent, but such is not the case here. There should be strict compliance with the rules, otherwise they will be whittled away and become meaningless and unenforceable.

It would have been quite simple for the plaintiffs to state with particularity the grounds of the motion. Defendant gave due notice of its objection to the form of the notice of motion. Plaintiffs had ample opportunity to correct it and have not done so up to the present time, but merely argue its sufficiency. Why should the plaintiffs be relieved of their obligation to "state with particularity the grounds" of the motion under these circumstances?

Plaintiffs have stood upon their strict legal right that their notice complies with the rule. Plaintiffs are entitled to a ruling upon their strict legal right and the ruling is, that the notice does not comply with the rule and the motion is denied. There are other reasons for which this motion could be denied.

The action was commenced in the New York Supreme Court, Kings County, and removed to this court. The amended complaint alleges that the Russo-Asiatic Bank, a corporation organized under the laws of the former Russian Empire, of whose assets in New York the plaintiffs are the receivers, prior to 1917 deposited with the defendant, a bank, certain sums of money which the bank agreed to repay, and on January 31, 1920, there was due the Russo-Asiatic Bank an unpaid balance of $2,067,523.90 and that payment of said sum was demanded and that by reason of the failure to repay said sum plaintiffs became entitled to recover double the amount, that is, $4,135,047.80 with interest.

One day before the commencement of this action in the state court the plaintiffs commenced an action against the same defendant upon the same cause of action in the United States District Court for the Southern District of New York in which the complaints are identical, except in the Southern District action the complaint alleges as the ground of federal jurisdiction that the suit is of a civil nature arising out of a transaction involving international or foreign banking or out of international or foreign financial operations of which the court has jurisdiction as provided by 12 U.S.C.A. § 632.

This action was removed to this court under 12 U.S.C.A. § 632. The case in the Southern District is on the trial calendar and can be tried shortly. The action in the state court was never placed on the trial calendar.

The plaintiffs had the right to bring an action in the federal court and an action in the state court for the same...