Opinion
April 14, 1938.
Appeal from Supreme Court of New York County.
Edward J. Ennis of counsel [ Aaron B. Holman with him on the brief; Lamar Hardy, United States Attorney, Southern District of New York, attorney], for the intervenor, appellant.
Paul C. Whipp of counsel [ Frederick B. Campbell with him on the brief; Campbell Whipp, attorneys], for the respondent Paul Lucke, as sole surviving director of Moscow Fire Insurance Company and conservator of its property.
Frederic C. Pitcher of counsel [ Douglas M. Amann and G. Frank Dougherty with him on the brief; Engelhard, Pollak, Pitcher, Stern Clarke, attorneys], for the respondents Jakubovic and others.
Borris M. Komar for the respondents Samuel E. Morro and others.
Thomas Kiernan of counsel [ White Case, attorneys], for the respondent Olga I. Hoppe.
Samson Selig of counsel [ Abraham J. Multer and William F. Roche with him on the brief], for the respondent John Steggal Sawyer and others.
Hartwell Cabell of counsel [ Cabell, Ignatius Lown, attorneys], for the respondents Heckscher Gottlieb and others.
Osmond K. Fraenkel, for the respondents Vladimir Kentman and others.
Victor R. Kaufmann, attorney for Thomas I. Sheridan and Kenneth F. Simpson, as receivers of Volga Kama Commercial Bank, as amici curiae. Cravath, deGersdorff, Swaine Wood, attorneys for John R. Crews, as receiver of Petrograd Metal Works, as amici curiae. Evarts, Choate, Curtin Leon, counsel for Elmer F. Quinn, as receiver of Vladikavkasky Railway Company, as amici curiae. Katz Sommerich, attorneys for John H. Thompson, as receiver of Petrograd Trading Bank, as amici curiae.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, COHN and CALLAHAN, JJ.; MARTIN, P.J., dissents.
The Court of Appeals in Matter of People ( Northern Insurance Company-Moscow Fire Insurance Company) ( 255 N.Y. 433, 435) directed that the assets in this State of Moscow Fire Insurance Company should be faithfully applied to the "use of the corporation, its creditors and shareholders." In the action instituted by the conservator trustee on April 19, 1933, and by certain shareholders on June 23, 1933, which actions were thereafter consolidated, all claims of creditors and shareholders properly established were reduced to judgment on August 22, 1934, following the opinion and the report of the referee appointed to determine the issues there involved. The disposition of the claims by the referee was in consonance with the direction of the Court of Appeals in Matter of People ( supra). From that judgment there does not appear to be any direct appeal here.
On April 13, 1936, appellant, upon application, was permitted to intervene in the consolidated actions upon a petition which prayed that the judgment in the consolidated actions be vacated and set aside and that the depository account to the intervenor for the fund in its possession. In the record before us we are unable to find any basis for a vacatur of the judgment entered August 22, 1934. The judgment appealed from here, which dismissed the intervenor's petition on the merits, was entered upon the opinion and report of the same referee after lengthy hearings. The evidence adduced before the referee sustains his finding "that the Soviet decrees of confiscation against the assets of Russian insurance companies were not intended to apply to such assets as were situated outside of Russia and in the United States, but were intended to apply only to such assets as were situated in Russia."
The judgment should be affirmed, with costs.
Judgment affirmed, with costs.