Petition for Writ of Certiorari — United States v. Pink

{ ee ae en

e 2 Pans: 3

‘ See / 2 Pie, ;

~ ’ . No. sinnemmen — . “J

- nie Speman the nied Suites Rs

_ OcTORER Tenm, 19406 AROS, a

| Unitep Sears OF AMERICA; PETITIONER

v.

Lewis H. Pink, Su PERINTE NDENT oF INSURANCE OF ;

rHe STATR OF NEW York, AND AS LiguipaToR oF * ge ag

vip DOMESTICATED Unitep Srates -Brancu oF...”

THRE Fursr RUssian [INSURANCE CoMPANY, [cSTAB- .

LISHED IN 1827; Victor YERMALOFP, AND OTHERS

as . :

PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME

COURT ‘OF THE STATE OF NEW YORK, NEW YORK

COUNTY ‘

oe eee ee or — -

oS

. Opinions below... .......--- Menus suede sates Suedsndupeneben 1

ne Ce SRA LE eee a eee. eG Uae hea 2

errr ee sis astro 3

Statement... ai OA nb pe aakenwiinnt are.

Specification of errors ‘> be urged. vant pts ae es FE pe me Ol ay

Reasons for granting thewrit....-..-__. 10

ee ee ee Pee = 16

CIT ATIONS

Albertson v. Fidelity & Deposit Co., 253 App. Div. 801. SU

Ancient Egyptian Order v. Michaux, 279 U.S. 737. : 13

Anderson v. Title Guarantee & Trust Co., 248 App. Div. 895_. ll

Bettman v. Northern Ins. Co, 134 Ohio St. 341. . 15

Boraz, Ltd. v. Los Angeles, 296 U. S 10 ° , . 14

’ -Broad River Co. v. South Carolina, 281 U. 8.537. : 13

- Creswill v. Knights of Pythiaa, 225 U 8. 2462 = 3

-~ Davis v. Wechsler, 263°U. 8. 220.22 = dai oni

Fiscella v. Fridman, 169 Mise. 327_ 2. > an Sry |

Hines’v. Davidowitz, No. 22; this Term, decided January

20, 1941, note 19... _.- cam 15

James & Co. y. Rossia Ins. Co., 247 Nia 262 ° “13

James & Co. v. Second Russian ips. Co., 239 N. Y. 248. 12

‘Lawrence v. State Tax Comm., 286 U.S. 276... Pattee 13

_° Lederer vy. Wise Shoe Co 0., 276. N. Y. 450..._-. VR MW

Mason Co. v. Tax Comm'n, 302 U. 8. 186... _- rooae aS 14

Matter of Pre (City Equitable Fire Ins. Co.), 238 N. Y..°

147_. 13

Matter of People ( Moscow Fire Ins: Co. ), 255.N.. Y. 433. == 12

Matter of People (Norshe Lloyd Ins. Co.), 242 N.Y. 148 - 13.

\Matter of People (Russian Reinsurance Co.), 255 N.Y. 415 12

Matter of People (Second Russian dns. Co.), 256 N. Y. 177. 12

Moscow Fire Ins, Co. v. Bank of New York, 280 N. XY. 286,

'* aff'd by an equally divided court, 308 U. 8. 624°? 8, 10,14

: NG vy. Palmer, 131 Misc. 671 pe : 11

“Newark Fire Ins. Co, v. Brill, 251 App: Dis; 399. yee |

' Norris v, Alabama, 294 U. 8. 587__.-. 13

103 ‘Pairk Ave, Co; v. Exchange Buffet Corp.. 203: Kw. Div,

ey ae : . 10,11

Pross v. Foundation Properties, Tae. 158 Mise. 1. Bee a 1!

o Schuylkill Trust Co. ¥. P vndeplvanio, 296 U.S. 113- owe 13

’ (tT) ’

, 903210—41——1 .

is

- oe

" Cases—Continued. : . Lee EA tet ab

Stanley v. “Schwalby, 162 U. zs S.255 picks ge cl seedlbaibadiniararak efecabeare ose

Tracy v. Danzinger, 249 App. Div. 46_.-. .--- -- = 9%

United States v. Ansonia Brass &e. Co., 218 U. s. 452. at

_ United States v. ee ree Sn Ae Se 296 U.S.

463 a a ee an aie ee eee nd Sek ae s

mentite 201 U. 8. 324. + :

United States v. Manhattan 276 N.- Y. 0.323...

United States v. Moscow Fire Ips. Co., 389 U.S. 624_. 3, 7, 10, 11, 15

United States v. Perkins, 163 U. 8. 625... .-....--.----

Ward v. Love County, 253° U_S_1 DS ee

Wels v. Rubin, 254 App. Div. 484__..........--..--.----

Miseellaneous: ss . : :

Rule !13-of Rules of Civil Practice of New Yerk..- ~~. Sea

.:

Ge

Pe

athe Supreme Gourtof heidi

OCTORER TERM, 1940

, No. pipe sed 2 . ; s

--Usirep STATES OF AMERICA, PETITIONER

wv. ;

Louis iw Pix«, SUPERINTENDENT OF Lweunaivce OF:

THE STATE OF NEW YORK, AND AS LIQUIDATOR OF

THE Doméstica™ep UNITED States BraNcu OF

“. vHE First Russian [nsuRANCE Company, Estas- “

LISHED IN 1827; Victor YERMALOFF, AND OTHERS |

PETITION FOR: A WRIT OF ? CERTIORARI TO THE SUPREME ;

COURT OF THE STATE OF NEW carvut NEW eee

_ COUNTY . Sg

The Solicitor. General, on behalf of the. United

States of America, prays.that a writ. of certiorari

issue to review the judgment’ of the Supreme Court

of the State of New York, New York County, en- |

tered on January-7, 1941, on remittitur from the - -,

Court of it Appeals (R. 67-68). 7

es cae BELOW. Naa » .

‘The memorandum opinion of the Supreme Court aN

of New York, New York County (R.52) is not

reported. Judgment of “affirmance by. the Ap- | —

pellate Division of the Supreme Court of the State

‘ay ene ate F

ro iss . &

eet ~

of New .York & the First Judicial Department

(R. 57) was entered without opinion. The -per

curiam opinion of the Court of Appeals of the :

State of New York (R. saris has not’ yet been |

repor ted. :

JURISDICTIONAL, STATEMENT

The. judgment of the Court of Appeals was en-

-tered on Decethber 31, 1940 (R. 65-66) ; the judg-

ment ‘of the Supreme Court, New York. County, °

on remittitur : from the Court of Appeals was en-

. tered on ‘January 7, 1941 (R. 67-68). © The juris-

. diction of this Court -is invoked under Section 237

(b)' of the Judie ‘ial Code as amended by the Act

of February 13, 1925.

The decision of the court alia: jaeuie esa title |

as right specially set up and claimed. by the peti

_tioner under the Constitution, laws, authority, and

a treaty of the United States within Section 230 _

(B) of the Judicial Code, as amended. The de-

cision of the court below that state law, rather.

~ than federal law as the petitioner contended, de-

termines the validity of the petitioner’s title to the

property involved, and that under state law alleged

_ foreign creditors and stockholders of the former

First Russian Insurance Company, and. not the

petitioner, are entitled to the property, involves

substantial questions which, petitioner. contends,

Ww ere decided contrary to a directly applies ible de-.

cision of this Court. United States v. Belmont,

301 U.S, 324. The precise caeuionin involved

.

were.

.

‘

3

Bee °

eo

was before this Court in [ "nited States v. Moscow.

Fire 1 nsurance Co:, 309 U.S. 624, where the de-

cision, of the ‘Court of. Appeals of New York (280

N.Y. 286), upon y hich the decision in the instant

‘ase is rested, was affirmed:by an equally divided

‘court. “The only difference between the two cases.

is that-in the. Moscow case, in which evidence was

taken, there was an adverse decision below ona -

question of foreign law. Other r.cases believed to _

baie jurisdiction of this ¢ ‘ourt are United States

‘Belmont, supra; United “States v. Ansonia.

pb ie. Co., 218 U. S. 4525 Stanley v. Be hw wong

“162 U. s. 255d.

Petitioner raised these substantial federal ques-

liens in its original pleading in this action in the

estate court .(R. 19, 22, 31), by appeal.from the:

judgm nt against petitioner (R. 55), and by writ-

ten and oral arguments on appeal which were re-

ae ‘ted by the state appellate courts. ;

_ QUESTIONS PRESENTED

The Government asserts title to personal prop-

erty inj New ¥ork of a dissolved Russian Insur-

ance Company, remaining ‘after. pay ment of do-

mestic dreditors and’ transfer red by Soviet law to

the Soviet Government and then assigned by inter-

nationall compact to the United States. Tts claim

that thiy surplus property should be delivered to

the United States as’ assignee of the Soviet Gove

ernmenit| and that it should be perniitted to contest

the clainis of tore’ ‘ign stockholders and: creditors of.

ee -}:

4 i

«the Company, adpends upon the fallowing ques:

tions :

1:W hether the Government’s. title and « airfs

are to be determined by federal law or by state

law. ry

2. Whether, under federal law, the decrees of

the Soviet Government nationalizing ‘the. property °.

of the Insurance Company. located in New, York

niust under the international compact he- recor:

nized and enforced by the courts of N ew York.”

3. Whether the United States br anvh of the for-

mer Insuri mce Company may be regarded as a

separate organization. created and regulated by

New York’law, and whether under New York law .

the United States has title to ‘this property.

STATEMENT.

The United States brought ‘the instant atin

agi iinst the respondent,’ the’ Superintendent of In-

surance of. New York, to recover the assets of the

New York branch of the First Russian Insurance

Company, which remained after the payment of

_ the claims of domestic creditors. The ‘complaint

salleged that such assets had by Russian law — “d

: The policy holder's and claimanfs asserting rights | in and

to.the surplus, assets of the i insurance company were made

_ defendants below. Their claims are all subordinate to the

right of. the Superintendent of. Insurance to apply the: sur-

plus assets to the payment of their claims.

B .

ee

» ’

| policyholders and creditors of the company

. e

‘

j rr °

od ° Z Pe

vo ° e ag ~ ues F

oe °

. to the Government. of Russia and had. been ais-..

signed fo the United States by that Government:

The complaint was dismissed for failure to state.

a cause of.action, The material facts set. forth in.

‘the dill of complaint | are. substantially ds follows:

“The, First Russian Insurance Company, a cor-

poration organized under the laws of the former

‘Empire of Russia (R. 19), established a ‘United

States branch in the State of New York in 1907

(R. 22). In compliance with the Jaws of f that. state

the company deposited withthe Superintendent of

Insurance ‘e of New York certain assets which were -

“to secure the payment of all claims resulting from

the transactions of the New-York branch. In 1918

the Russian Gv ernment: by various laws, deerees,

enactments, and orders made the business of insur-

ance fnall of its forms a state monopoly, dissolved

all insuranee éompanies, and cancelled the debts

of such companies and the rights of ‘the stockhold- —

ers to any claims therein (R. 23), ‘These laws and

decrees also nationalized all of the assets ‘atid prop-

- erty of the Russian. insurance companies wherever.

situated (R. 23-24).

The New York braneh of the First Russian In-

surance Company contiaued to do business in New

York until 1925 whien the respondent took pos-

session of its assets, pursuant to an order of the

Sypreme: Court of New York, which directed him

to. determine and report. upon the claims

* .

rece germs

9%

United States (R. : 25-26). | Thereafter, all claims

arising out of the business of the United States .

. branch of the company (hereinafter referred. to-as

‘the claims of. domestic creditors) were fully paid.

by: respondent” (R. 26427). and there remained ‘in.

‘ his hands after payment of all ‘domestic claims ap-

proximately $1, 335,653. 73. (R. .27.) In. deter-

| mnining:. the disposition that” should be made of

this surplus, the New York Court of Appeals, on

February 10, 3931, directed that the’ respondent

proceed to determiné and pay claims of certain

foréign creditors. 255 N. Y. 415, 423 (R: 28-29).

certain payments have bee n- ‘made ther von (R. 29-

32). . The major portion of the allowed ¢ ‘laims have

the disposition of the claim of the Unired States

. (CR: 34). °° : : a

On November 16, 1933, the United States recog-*

nized the U hion of Soviet Socialist. Republics’ as

“the de jur € Gove sarmment of Russia and i in the course

of and-as an incident to that recognition ace -epted =

an assignment from ia Government of all elainis | -

The respondent thereupon proceedéd with the'lia- ”

—nidation of the claims of foreign creditors. Frem

fime te téme certain claims have been allow ed, and «

. sd *

not been paid, their payment being stayed ‘periding

_«

which it had against nationals of the United Siates’

as. successor to prior Governments of Russia, or

otherwise «R. 31). i: :

On Novetnber 14, 19: 34, while the liquidation pr O°.

ceedings were ‘pending, the United States com-

‘

ray ‘

“4 z

oe .

sac rasta eee LN. LOL SLE SET Mere

> menced a suit against respondent in thé United .

States District Court for the Southern District pf |

New York, seeking 0. recover the assets still re-

-* maining in the harids of the respondent, but this -—

- Court “concladed that ‘imasmuch as ‘the res was in-

the’ custody of a state court, federal. courts lacked >

jurisdiction to: dispose of the controversy and re-

‘mitted the United. States to.the state courts for the

~ determination - of its. claim. (rR. 32-23). - United. ©

. States*v. Bank of New York & Trust Co., 296 U.S.

“468. hereafter, the present suit was institute i in

| the } Suprenie Court of New York.’ - sf

.. Foll6wing the decision ef the Court of Appe als:

of New York in the Moscow case, the Supreme

€C ‘ourt of Ne Ww "York on responde fit’s motion dis- .

missed .the complaint of the United States and |

entered summary judgment for ‘respondent CR:

§-9).. The Appellate Division on’ May 17, 1940,

affirmed without opinion.(R, 57)... On appeal pur-

suant tp leave granted by the Appedlat¢ Division |

(R. 61)/ the Court of Appeals on Decent 1940 .

-(R. 71472), affirmed i aia per curiam opihton on the

a |

_ “Prior to the institution.of ‘the instant case, the U ited ,

States moved for leave to intervene in the liquidati- » proceed-

inys then being conducted by the respondent. The motion

was denied on March 14, 1936, “without prejudice to the

* Institution of the time-honored form of-action™ (R. 33-34).

That order svas affirmed by the Appellate Division without

opinion on Fune 30, 1936 0nd the Appellate Division and the. .

‘ourt of Appeals denied motions of the United States for“

Te ave to appe: al to the Conrt of Appeadson Ov tobér 93, 1936,

ane December 1. 1856, , prctively «Rh, 34}.

oohe10— 41

F. ,

. . 7 s

atithority of Moscow Fire insurance Co. V. Bank

of New York, 280 N. Y. wit aff'd by an equally

- «divided ecurt, 309 UL S. ‘624.

SPECIFICATION’ ‘OF ERRORS TO BE URGED

= he Court of Appe: ils: of New York erred:

. In holding that the right of the Unfited States,

as assignee of the Soviet Government, to ‘the sur-

plus assets of a dissolved Russian insuranee Cor:

poration is yoverned by me of the State of New’

York. | ae ‘

2. In failing to hold that the right of the- United

States to; the surplus assets as assigneé of the

Soviet Government is governed, by federal law.

3. In failtiig to hold that, under federal law, the

detrees ‘of the Soviet Government’ nationalizing

. property loc ated4in the State ef New York and be-

longing’ toa Russian corpor: ite national must under,

the Litviney Assignment he recognized and sively

e ffoet hy the-courts of New York.

4. In holding: that the: New York brane A of the

First Russian Lnsnrance Company existed as a sep)

arate and‘distinet corporate entity éven after the .

4 dissolution of the First’ Russian Insurance “et Com-

pany by the law of the state of its éreation-

5..In holding that the nationalization, decrees at

*the Soviet Government relating to Insurange com: ,

puyies had ho effect upon surplus persofal prop-

‘erty of the dissolved Russian Insurance Company

located in the State of New York. . *

OS SS :

6. In holding that\the claims of stockholders of

the dissolved corporatten and foreign creditors

thereof were superior to those ‘asserted by the

U nited States. _ . ) ° |

- In holding that the Soviet Government did-

not ss ‘come the successor ‘to all right, title and

interest offMie First Russian Insurance Company.

8. In hol ling that the U nited States was not

entitled to any residue of thy surpils funds of the.

First Russian Insurance. Company even if the

claims of creditors and stockholders were superior

to the ¢laim of the United States.

9..In holding that- under the Litvinov Assign-

ment the“rights to the surplus property which the

Government seeks to enforce are subject’ to state

Jaw.

© 10+ In holding that the United States as a mat-,

“ter of state Taw > no titlé to the surplus

a 63 of the First Russian Insurance Company.

. In holding that. Section 7 of the Insurance

ee Ww ae ‘ew York conferred jurisdiction upen the

courts of New’ York.to make. distribution pf the

surplus funds of the dissolved Russian. Ingurance

Company after all domestée creditors and ¢laim-

ants of that company had been paid. |

12. In- affirming: the judgment of the Appellate

Division of the Supreme Court of New York- and

' the judgment of the Supreme Court of the State

of als York anining the ee

0)

REASONS FOR GRANTING THE WRIT “.

The Court of Appeals, in affirming the difnissal

of the complaint, did so oy the authority of its

prior decision in Moscow Fire Insurance Co. |

Bank of New York & Trust Co., 280 N. Y. 286,

aff'd by an equally divided court, 309 U. S. 624.

The questions involved in this proceeding are the

same as those in the Moscow case, save that, in this

case, the question whether the Soviet decrees were

‘ intended to reach the assets of Ritssian insurance

companies located abroad i is not in issue, the alle-

gation of the complaint that the decrees extended

to’such assets having been admitted by the motion.

Cf. United States v. Belmont, 85 F. (2d) 542, 546

(C. C. A.‘ 2d), reversed on other grounds, 301 U. Ss.

324, 327." ‘This Court having . rece ntly granted

The motion to dismiss the complaint in the court below

was stated co be under the summary judgment provisions of

Rule 113 of the New York Rules of Civil Practice. as well a=

on the ground that the complaint was insufficient in law (R.

10), but it is clear that no factual issue as to the Russian law

was presented. The supperting affidavit expressly dis.

claimed any Intention to raise an e ‘videntiary issue (RR. 1%)

and the ( ‘oul of. Appeals declared that “without again con-

* sidering such questions this court should, in determining title

to assets Of First Russian Insuraneh Company, deposited in

; this State, apply in this case the atte rules of law which the

~vourt applied in. the earlier case jn determining title to the

assets-of Moscow Fire Insurance Company deposited here”

(R.-T1-72). Moreovér, thie present action iin equity (see

Paina Are. Co. v. Exchange Buffet € orp. 208 App. Div.

a nited: States v. Manhattan ¢ '0.. 276 N.Y. 306, 402) and,

bie New York practice, the issue of the constructign of

~ the Russian law could not have been presented on this motion

il

eitiavas in the Mosgow ease (308 U. s. 542), the

reasons for granting the writ in this case need orffy*

briefly be stated here. . :

}. The decision beloweis in direct conflict with

— the. decision of this Court in United States v. Bel-

mont, 301 U. S. 324. In that case the Court held .

that the effect of the récognition, of the Soviet Gov- *-

ernment and the. Litvinov Assignment was *‘to val-

idate, so far as this. country is concerned”? (id. ait

330) the decrees of the Soviet Governmen* a-

tionalizing: all property, wherever located, of Rus-

The first five subdivisions of Rule 113 of the Rules of Civil

Practice do not apply-to equitable actions. A/bertson v.

Fidelity & Deposit Co., 2538 App. Div. 801; 103 Park Avenue

Cov. Lrchange Buffet Corp., 203 App. Div. 739; Fiscella v.

Fridman, 169 Mise. 327; Andérson v. Title Guarantee &

Trust Co., 248 App. Div. 895 ; Tracy v.,.Danzinger, 249 App.

Div. 46; Veiwark Fire Ins. Co. v. Brill, 251 App. Div. 399.

Subdivisions 6, 7, andl Sof the Rule are patently inapplicable .

upon their face. ‘Fhe only provision of Rule 113 which might

have been applicable.is that contained in the fifth paragraph,

suthor izing summary judgment “where the defense is founded

_ upon facts established prima facie by ‘documentary evidence

or official record.” “This « ‘ontemplates sa case where the docu-

ment or official ar is in itself proof of the ‘defense as--

serted. See, e. g.. Lederer v. Wise Shoe Co.. 276 N.Y. 459:

Wels vy. Rubin, 254 App. Div. 484. _ Here the “fact” involved

Was the intention of the Russian dec rees as a matter of Rus-

: fh : = . .

sian law. The circumstance. that evidénce on this question >

“was intreducedlin the Moscow case does not make that mass

_~

of testimony an “official record” of the kind contemplated.

Moreover, the elementary requirement that a party attach

to his papers copies of all documents relied on (Vegi ve '

Palmer, 131 Mise. 671: Pross'v. Foundation Properties, Inc.,

15s Mise. 304, 308 ; > Wels.v. Kubin, supra) was not complied

with, nor were any specific documents refe rred to. ;

.-

12 7

sian corporate nationals, including a bank deposit

in the United States ; that ‘‘no state poliey ¢ can pre-

Vail against the internatiqnual compact here. in-.

volved”? (id. at 327) ; and that “state constitutions,

state laws, and state policies are irrelevant * *.*”

(id. at 332). The court below, in plain disregard

_af the decision in the Belmont case, has -held that,

the: validity of the title acquired by the. United ;

States under the ‘Litvinov Assignment i is governed

exclusively by state‘law.

- 2. The decision below: is not based’ on any tind.

ieee and adequate non-federal ground. The

material allegations of fag were admitted by the

_Motion. And the decisior@that the local branch of

+s

the First Russian Iyisurance C ompany is a ‘*com-

plete and separate prganizatiort’’, the’ assets of

which cannot be reached by the domiciliary state of

the parent corporation, neééssarily preserits a fed-

eral question. The status of the local bratich can

be material only ‘for the purpose of determining

Ww hether the surplus assets belonged to a domestic

corporation beyond the jurisdiction of the Soviet

~ Government at the time of. the natiorialization de-

erees. The court below, however, did not hold that

the assets belonged to the New York branch; it ex-

_ pressly recognized, in accordance with its own pri-

or decisions, “that at the time of the nationalization

* Matter of People (eae Russian Ins..Co. ), 256 N. Y.

177, 181; Matter of People (Moscow Fire Ins. Cé.), 255 N. a

433; Matter of People (Russian Re insurance Co.), 255 N.Y.

415: James & Co: v. Second Russian Ins. Co., 239 N. Y. 248;

13

ussia. The ‘Belmont *

case squarely holds. that state law is irrelevant to

the validity of the nationalization of the property’

of such Russian corporate. nationals, even though -

the property is located within the state, and further -

holds that as a matter of federal law, the national-

ization is vaNd.. It is immaterial that in this case

‘the Russian ‘corporation engaged in business in

New York through the New York branch. The

Moscow decision attempt to prescribe thé rule of

assets should be determined after the conditions

had been satisfied. At all events the questiori

whether the Belmont decision prec ‘ludes the appli-_

eatidn of state law in these circumstances is one

which. can authoritatively be determined onkx, by

this\Court.°

Jamés & Co. v. Rossia Inse Co., IAT N, ¥: 262; Matter of

People (Norske Lloyd Ins. Ca.), 242 N.Y: 148: agnor of

People (City Equitable Fire Ins, Co); 238 N.Y. 147.

* In the eygnt, the petition. is granted the Government will

also argue that there is no fair and substantial basis in state

law, independently determined, for the ruling below that the

local branch is a separate and indepedent organization (ef.

Schuylkill Trust Co. v. Pe nnsylvania, mt U.S. 113, 119;

Lawrence y. State, Tax Comm., 283 U. S. 276, 283; Broad

River'Co. v. South Carolina, 281 U. S. 587, 540; Ancient

+ Egyptian Order v. Michaux, 279 U.S. 737, 744-745; Davis

v.. Wechsler, 263 U. S, 22, 24; Ward. v. Love County, 253

-

_

state.may enforce the conditions prescribed for the -

conduct of the corporation’s domestic Disiness, but.

-it did not acquire authority nor did it prior to-the -

law by which the validity of the title to the surplus —

*.

decrees. the surplus assets belonged to the parent ___-__—

“

“14 7

3: Practically thé same. substantial questions

here involved were first presented to this Court by

"the Government’s petition for-certiorari in United

Statés ‘v.. Bank of New York & Teust Co.; 296

U.S. 463. .This Court stated in its opinipn that

certiorart hay been granted ‘Because of the

and importance of the questions presented ”’

U. S. at p. 471), and in remitting the Governme}t

_to the state court’for adjudication of its title, cafe-

‘fully pointed out that any federal ‘question pre-

sented in the state court might be reviewed by this

Court for final decision - The Government's peti-

tion was again granted in the Moscow case (308

U.S. 542), where this Court affirmed, by an

equally divided Court of. six Justices. .

U. S. 17.22: Norris v- Alabama, 294 UES. SSTSS9-590: Cree

will v. Knights of Pythias,.225 5 THs 246, 261). and further.

that the state law should be independently determined by

this Court, the denial of the title of the nited States by a

state court necessarily involving a -federaf question whe

may be rev iewed by this Court. Mixon Co. vy. Tar Comm'n,

302 U.S. 186, 197: 7 wiiey States v. Ansonia Brass &c. Co.

218 U.S. 452; Stanley v. Schiralby, 162. S. 255, YTS-279:

United States v. Pe a A, 163 U.S. 625 ; Boras, Ltd. v. Los

-Ange Jes, 296 U.S. 10, 28.

* The Court sated 1 in its opinion (296 U.S. 479):

In this instance it cannot be doubted that the United

States is free to invoke the jurisdiction of the state court

for the determination of its claim, and the decision of

the state court of any federal questign which may be

presented upon such an invocation, may be reviewed by

this Court and thus all the questions which the Goverf-

ment seeks to raise in these suits may be ‘appropriately

and finally decided. Jud. Code, § 237, 28 U. S. ¢. 344.

- J.

» ag

Confusion has resulfed and in spite of years of

litigation the Government’s rights under the Lit-

vinov Assignment have not been definitely deter-

mined, Cf. Hines :v. Davidowitz, No. 22, this

Term, decided January 20, 1941, n. 19. In'U nited —

States v. Manhattan Co., 276 N. Y. 396, the court

below held that a complaint substantially identiéal

to that involved in the present case stated a good

cause of aetion and-remitted thescase to the lower

New Yerk courts for further proceedings.’ Such

_proceedings have been. held in abeyance because of

the subsequent litigation in the Moscow case and

in this action. - Similar uncertainty exists. with

respect to. the Government's claims involviyg as-

sets of other Russian companies in other courts."

The majority and concurring opinions of this

Court in. the, Belmont case, the majority and dis-

senting opinions of the court, below in the Moscow

ease, and the equal division of this Court in that

case, indicate a contrariety of judici ial views which

appropriately should be finally _ settled by this

>

“In Bettman v. Northern Ins. €0., 134 Ohio St, 341, the

Supreme Court of Ohio followed the decision of this Court

in the Belmont « ise and that of the Court of Appeals of New”

- \ York in United States: v. Manhattan (., supra, to reach a

result in substantial conflict w ith the decision of the Court of

ss: ape in this case. ‘ + aoa

* There are about 15 cases pending in various state and fed-

eral courts involving the claim of ‘the United States to the

property in this country of nationalized Russian Corpora-

_ tions,

a

i? iN a ~ s\ CONCLUSION | rz :

_ For the reasons stated, it is. respectfully sub-

mitted that this petition: for a writ of certiorari

.~. . should be granted. meee as

; ' Francis Bwwp.r, -

'* Solicitor General.

Marcu, 1941. -.

U & SOVERPNMENT PRINTING OFFICE. 194!

| “a ; aos