# Brief on Behalf Amicus Curiae — United States v. Pink > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0505%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief on Behalf Amicus Curiae - **Published:** January 1, 1942 - **Citation:** 315 U.S. 203 ## Text tiledhenttaenend "o's . : ; = w, ae ae sett. ¥ Office . Supreme Gourt, U. ia pou ds em “Iy THE, DES 15 “i941. Supreme ‘Court of, the. United State iz CHARLES Aweti cect | | OcrosER TERM, 141 CLERK x | 1 No. 42 $x a I arr UN ITED STATES OF AMERICA, ‘ Petitioner, Vv." ' + LOUIS H. PINK, Superintendent of Insurance of the ‘State of New York, and as Liquidator of the Domesti- . cated United States Branch of Rirst Russian Insurance Company Established in 1827 ; V ICT OR.YERMA- LOFF, and others. : 4 On aA Writ or CERTIORARI .TO THE SUPREME CourT . © OF THE STATE‘OF NEw YorK, NEw YorK COUNTY. . ’ 3 . . . . =a AMICUS CURIAE “BRIEF ON BEHALF OF CERTAIN RECEIVERS UNDER ON 977-b OF THE NEW YORK CIVIL PRACTICE ACT J FrepEerRIcK H. Woop, ’ Acpert Ray CoNnNELLY, Qf Counsel. 1. The New “York. court has held that the Soviet decrees did not purport to confiscate assets in New York and do not affect the disposition of -such assets. Fr SG ga CA et one 2. No federal question is presented by: the deci- sion of the New York Sr Per yr a SK N : INDEX : PAGE ~ Consent of Parties... Sea re hey Re Nera Me epee ~Spinions Below. pata Nera » Bachtel v. Wilson, 204 U.S. 36. Oh enue nan’ eecere eee"; Barth v. Backus; 140.N. Y: 290/.°. «oo see ioe ves es 10 . Bradford Elec. Co. v. Clapper, 286 U. S. 145, 154... .16, 17. Erig Railroad Co. v. Tompkins, 304 U. S. 64... 0006. 4 . Fox Filni Corp. v. Muller, 296 U. §.207.. LATE ee | Grayson v. Harris, 267 U.S. 352, 357, 358....... Sh Griffin v. AlcCoach, 313 U.S. 498, 506,,607........ 11, 16 Guaranty, Trust Coe. vy. U nited States, 304. U. S. 126, oe MAD ck. Lessev ed. fe eegtu ones re Soaeed 4513, 56 é a She ‘ , Henly v. Donoghwe 116 US. L 4 3 pee ae-adaens uae _ Johnson v. Risk; 137 U. S. 300 eee ett oueds foo, YY. Klaxon Co. v. Stentor Co., 313 U. 8. 487, 498. 2.0... 16 _ Kryger.v. Wilson, 242 U.S Sg ee gy arora De Se SAG Lytey. New York, 293 U. S. 52,-54, Be ».s47, 18 Moscow Fire Ins. Co. v. Bank of New York, 280N. sf 286, aff'd without opinion, 309 U.S 5. 624, pear den. 309 U, SOM. veo ses: Pe eea _ «3-8, 11, 13, 14 - Natit. Carpenter ,*305 es S297, fr 14 Oliner-v. py rele an Oriental Banking Corporation; 252 oe App. Div. 212, aff'd without opinion, 277 ‘N. Y. 5 iI oe eA Hib “ ‘Judicial Code, Section 237(b), as amended by Act ° Feb, 13, 1935 [28 U. wu C, § 344(b) Pec rse ese sOe bey 13° _New York C ivi, Practice Act, Section 977 TS. 2. tay ae ‘ Seat ot eae Pacific E-mplovers ‘Instiranée Co. Vv. Industrial . dec eke ‘ | Conmn’n 5306 U.S. 493, S00. oe decease. ne oft 16. acre ehh Mound. City Asséc tation, 124 U.. S. 603. ase f Ieited States y. Belmont, 301 *); s. 7, Re Pee 10, 13,16 _ United States v. Manhattan Co., 276 N. ¥: 36 aor ae Western Indemnity Co. ¥- Rupp, 235 U. S. 261, 275. 15 i 7 "Statutes ie Age \ SBP Stene eth cise eatin orl IN THE “ Supeeme Court nf, the Zao States: OctoreR TERM, 1941 UNITED STATES OF AMERICA, Petitioner, Vv. Louis H. Pixk, Superintendent of Insur-~) No, 42 -ance of the State of New York, and ° as - Liquidator of. the Domesticated United States Branch of First, Russian Insurance : Company Established in 1827; ° Victor hs YERMALOFF, and others. : | ine BRIEF ON BEHALF OF ] , iRWIN STEINGUT. and HAROLD E. BLODGETT, as Receivers of | the: assets, in New York of Russo-Asiatic Bank; JOHN R. CREWS, as Receiver of the assets in New Sica of. Petrograd ‘ Metal Works; - ELMER F. QUINN, as Récstear of the assets in New York of Viadikav- kazsky Railway Companys JOHN H. THOMPSON, as Receiver of the assets in New York of Petro- grad Trading Bank; THOMAS 1. SHERIDAN ve JULIUS SCHOR, as Receivers of the as#ets in New York of Volga Kama Commercial Bank; and HARRY BIJUR, as Receiver of the assets in New York of Northern Insur- ance > Company of Moscow, ‘ ‘CONSENT OF PARTIES - ' This biiefiis stibmitted upén the written con€nt of. the parties to this appeal, filed with the Clerkof this Court. The Receivers in whose behalf the brief is filed have. been appointed by court orders purstiant to Section 977- b of the. Gvil Practice Act of New York and are parties to pending actions which involve the questions discussed herein, As Amici Cariae. : HY ‘ x the State of New York, New York County, ts not- reported, OPINIONS BELOW Phe memerandum. opinion of.the Supreme Court ot The judgment, based thereon, was unanimously. affirmed with OURO] pinion by the Appellate Division of the Supremé ey ‘Court for the’ First Judicial Department. ( (259 App. Diy. SFL The per curiam opinion of the New York Court 4 Appeals, affirming the judgment bel: ow, is reported in 284 twee > N. ¥.. 9 Petitioner, invokes the jurisdiction of this Court. under. Section 237(b) of the Judicial vont as: amended by ‘the Act of February 13, 1935 [28 U. S.C. - $344(b)]. ; SUMMARY OF ARGUMENT * The decbien a the New York Court of peer does not present 4 a federal question subject to review by this Court. - \ e 1. The New York court has ‘held that the Soviet decrees relied upon ‘by petitioner did not purport fo confiscate as- ’ séts’ in: New York of the U nited States bratich of a‘Rus-. ‘sian insurance company and donot affect the disposition of such assets. : ey Bi » ‘ . ’ | . 2. Neither: the interpretations of foreign’ law by .the New York court nor its decision as to. the application & such: foreign law raises a federal: question, JURISDICTIONS. — , aaa a ae ene aw RO See tb BLAIS, aA EEE te ee A tare ARGUMENT - THE DECISION OF THE NEW YORK COURT OF APPEALS DOES NOT PRESENT A FEDERAL QUESTION ‘ SUBJECT TO REVIEW. BY THIS COURT. aL The New. York court has held that the Soviet decrees didnot purport to. cortficcate ‘assets in New York and de not affect the disposition of such ‘assets. — . The courts of the State of New Y ork have held that the Soviet dectees relied | upon by petitioner did not purport to confiscate assets in New York: of the’ United States branch of a Russian, insurance company and do not affect ‘the dispositipn. of syich assets. The courts bélow have so held in this case and: in so doing, hav e followed the decision in Moscow Fire Ins. Co. \ ', Bank “ New York, 280 N. .'s . 286, aff be without opinion, 309 U. S. 624, rehearing denied, 309.U. S...697. | Polteg ie curiani opinion of the Court of. Appeals in this case expressly states that the court applied the same rules: of law which ‘were. applied in its decision in the _Moscotv case. The facts considered in the Mescow case are substanti: uly thé same. as the facts herein. bi In the Moscow case, the United States Government, intervener, appes led to. the Court of Appeals from a judgment, Tei dered after, a trial of the issues, dismissing on.the merits its petition asserting title to surplus funds in New York of _the ‘Moscow: Fire Insurance Gompany. ‘The claim of the “United Sti ites, as the assignee of the Soviet government under the Litvinoy assignment, was based upon the ities ~ decrees nation: izing Russian insurance _ companies and ¢ confiscating their assets. - The Court of Appeals held in the Moscow case (1) as. a matter of construction, thatthe Soviet confiscatory de- crees did not purport to apply to assets in New York of ‘the United States branch of.a Russian insurance corpora- tion; (2) as a matter: ‘of conflict of laws, that. rights to . property in New York belonging to the United States. branch of a Russian insurance corporation are dependent, not pon the law of Russia, but upon the law of New York; and (3) that under the law of New York, upon the termina- ‘tion in Russia of the corporate existence of the Russian __ iwsurance corporation, its residual rights to property located in New York passed to its stockholders and-creditors and not to the Soviet government. y > ‘In arriving at that decision, the C ourt of Appeals (per Lehman, J.) thus analy zed the problems involved (pp. 302- 303 j “The rights” of the United States. are bite solely from the assignment by the Soviet government of. its claims against nationals of the United States. The claims of the Soviet government for the moneys ar property.in this country, of Moscow Fire Insur- ance- Company are based solely on its decrees of: natiorialization of insurance companies and of seiz- . ure of their assets. The United States asserts here 'stitle’ to property of a branch in‘ this State of a’ - Russian insurance corporation which it is said was. iransferred, by force of these decrees, from the , insurance corporation to the russian government. . Two questions arise: first, w hether the Rissian de- - crees were intended to have such effect, and, second, w ether. even if so intended the courts of this State will‘give them their intended” ‘€ffect: -. * ~ fa *. " om * “The question then of thie construction of the’ Soviet ' decrees is a question of .the law of Russia to be DEE DEE IMTS EL - . determinedetike other questions of foreign law, upon the testimony of expert witnesses, decisions, of the foreign courts or officers authorized to. promulgate or authoritatively conStrue the foreign law, and upon the relevant documents. “The question of the effect to be given to the foreign law within this State by the-courts of this State must be determined in ac- cordance w ith the law of this Staiz, * * *” >. W ith respect to the construction of. the Soviet decrees; the court reviewed the findings of the reicree that ‘‘the decrees were not intended to apply to the property in this State of the United States branch of Méscow Fi ire Insurance.Company” and held that, notwithstanding the testimony of an expert witness to the contrary, “‘the.find-. ings. of the referee ate fully sustained: by the ev idence” (p. 306). - ee The court then considered whether, even if the Sovi let. * decrees were intended to apply to property with situs- in New York, the courts of New York should .give such decrees their in «nded effect and concluded that rights to property ine New York belonging to ‘the United ‘States branch of a Russian insurance comipany are dependent, hot upon the law of Russia as formulated in the Soviet detrees, but upon the law of New’ York. On this point the court said (pp, 307-310) : a . “© ertainly no decrée monopolicing the business of, * - insurance in Russia; taking over the conduct of the 3 insyfance business formerly conducted in Russia by irisurance corporations, and términating the obliga- tions of such companies could possibly have been intended to apply to business ronductéd here, or: if so intended, could be binding re. sche Ai °- or ea eee a oe ote ae “The findings or conclusions of the courts below that the decrees of nationalization of insurance were not intended to have effect heré and that title to and right to possession of the capital of the United States branch of the insurance company is dependent upon the law-of this State, rest upon a firm foundation.” The court then examined the law of New York to deter- mire who, under that law, was entitled to share 1 in the dis- tribution of the assets of the United Statés branch of the Moscow Fire Insurance Company and concluded that, “the situation’ here presented, the residual rights of i jiationalized Russian corporation. passed to its stockholders and creditors, = not to the Soviet gov ernment. The court Said ( p. 314): “The courts, giving effect as they must to the ex- tinction of the: parent conipany, must determine whether the parent company’s residual ‘right to - property here passes by confiscatory decree to the sovereign who extinguished the parent -corporation or whether under the law of this State such rights have passed to the stockholders and foreign credi- tors who, in answer to an: invitation: extended: to them by this State, have come in and proven their claims in accordance with a procedure dev ised by this court to ‘conform to justice and equity’ as those terms are understood here, The courts below have’ made the proper choice, not because. enforcement of confiscatory decrees of property situated else- where is contrary to our public policy, but because under the law: of this State such confiscatory decrees . do not affect the property claimed here.” The decision in the instant casé rests upon the identical -- grounds on Ww hich the decision’ in the Moscow case was based. In this case; precisely the same questions were pre- sented. : Paragraph 8 of the complaint alleges that the Soviet . decrees nationalized the assets “if every kind.and whereso- " ever situated of all Russian insurance companies” (R. 23). ° The answer denied each and every allegation of paragraph 8 of the complaint, except: the issuance of the decrees eR. 383. In addition, the- separate defense was pleaded that the confiscation Was. operative only within Russia, and that ‘the Soviet government itself has recognized that the nation- " alization and confiscatory (lecrees were. intended only to confiscate’ property within. the territorial limits of Russia and not to extend to. property outside of such territorial limits (R. 46-47). - Paragraph 10 of the complaint alleges that, as a result of” the Soviet decrees, the assets in New York of the insurance conipany become the property of the . Soviet government (R. 24). The answer denied such allegations \(R. 37). In. the affidavit subnritted by respondent in x support. of summary judgment dismissing the coniplaint, it is stated that ‘“‘the facts in the Moscow arid the instant cases are parallel” and that the “Soviet decrees involved are’ also the samé (R. 15). Such statements were not con- troverted in petitioner's opposing -affidavit, which asserted merely that in wiew Of the then pending C. § 344(b)], which provides that: = “Tt shall be competent for. the Supreme Court, by certiorari, to requjfe that there be certified to it for review. and determination, **—* any, cause wherein a final iaquaiek or decree has been ren- dered or r passed by the a court of a state’ in 13 which a decision could be had Where is drawn in -- question the validity of*a‘treaty or statute of the ‘United States; er where is drawn in question the , validity of a statuté of any State on the ground of its being repugnant to the C onstitution, ’ treaties, or, _ laws of the United States; or where any title, right, + privilege, or mamunity is specially sef up or claimed by either party under the C onstitution, Or any treaty or statute of, or commission held or authority exer- cised urider, the United States; *.*.*." It is indisputed that in this case no question has been raised concerning the validity of any statute of the vv nited States or of the State of New York. And. we are not concerned with the question whether the Litvinoy ‘assign- _ ment is a treaty within the meanihg of Section 237(b) of the Judicial Code, betause under the Litvi inov assignment the Soviet gov ernment assigned to the United States gov-. - ernment only ‘“* * * the amounts admitted to be due or that - may be found to be due it, as the successor of prior -Govern- ‘ments of Russia,-or otherwise, from ‘American niitionals, +**” (R. 36a,'36c). By the terms of that assignment, the United States government . reteived only the amounts admittedly due, or thereafter found to be due, the Soviet government, and this Court has held that by virtue of: that “assignment the United States government received only - ‘the rights possessed. by the Soviet government at the ~— of the assignment United States, v. Be Imont, 301 U. _ 324, 335-37; Guaranty: Trust Co. v. United States, Ae U. S,.12R 141. As the New York-Court of Roneale stated in the Mostow case (280 N. Y. 286, 304):, “ *There is nothing * *.* to suggest that the United States was to acquire or exert any greater, rights ° 14 S: % that) its transferor or that the President by mee exectttive actign purported or intended to alter or ditninish the rights of the debtor with respect. to -any assigned claitas; or that the United States * * + _ isto do more ¢hay the Soviet government could have done aiter Yiplimatic recognition—tnat. is, col- lect the clairns in conformity to local law. Even the . language of a treaty wherever reasonably : possible will be construed so-.as nit to‘override state laws — or to impair rights arising tnder: them.’ (Guaranty » Trust Cé. v. United States, 304 U. S. 126, 143.)- ' The United States has not. evoked: the judicial. ‘authority of the States in aid_of an agreemtnt it has consummated, calculated to gike the. decrees ot the Soviet government force beyond ‘the force giv en. jto decrees of “other recognized governments. It in- - “vokes the aid of the court only,.to enforce rights of. * the Soviet government, whatever they ‘might be,- which the United States has acquired by assignment, to property within this State and subject to ‘the law of the State.” - * : In determining the ‘claims of’ ‘the Soviet goverment which are ‘here asserted by the United States, the New: York court has decided (a) that such claims were de- pendent upon ‘New York law and (b)- that. unider New” York law, such claims were invalid. . On the latter point it is, of course, not open to questish 3 - that no federal question is presented, for the decision of the highest court of a state is cenclusive as to the law of that’ state. Frie Railroad Co. v. Tompkins, 304 U.S. 64; Ne °b- . lett v. Carpenter, 305 U, S. 297,.302. ‘The only possibility of a federal questioh 1 must, -there-. fore, lie in the decisicn that the claims of the Soviet govern- ment to property located i in New Y & were dependent upon 15 te) > rests upon alternative grounds: . (1) That thece was no foreign laweapplicable to ‘the claims, inasmuch as the Soviet decrees did not purpert to affect property in New York; and sented, rights to the property “in question must be determined:on the basis. of New York law and not Russian law. cae is subacute that neither alternative’ ground of the decisioni presents a federal question. The decision that the Soviet confiscatory poe -crees did. not purport to affect assets in New York of the Unitedi§tates branch of a Russian insurance company was a determina- tion of a question of fact, .e., the interpretation of foreign is presented by an allegedly erroneous interpretation of foreign law by a Laas court. Phillips v. Mound Ci side Asso- ciation, 124 U. . 6053 W ester Indemnity Co-¥ > Rupp; 235 UU, S.. 201; -: _ Cf. Hanle y vy. Donoghue, 116 U.S. Grayson v. Harris, 267'U. S. 352, 357, 358. “\. Even if, however, the state. ‘court had fotind that the Soviet decrees did purport to confiscate. assets in New Y ork and had\rested its’ decision selely upon’the ground that un- der the circumstances here presented rights to the property in questin m,must be determined upen the basis of New Y ork _ Jaw and not Russian law, its decisiori would be Merely a a fecision as to the New Y ork rules of conflict of laws, and ° » such a decisifin does not present a federal question under $ the due process\clause of the Fourteenth Amendment to the e w York law., As heretofore pointed out, that: decision’ ey (2) That undér_ the circumstances here pre- aw, and’ it has long been settled that no federal question — a 4- 6; Aetna Life Ins..Co. v.. Diinken, 266'U. S. 389, 394 7 -. a Constitiition of, oe United States. Kryger v. Wilson, 242 “WS. 773, See Bradford Elec? Co. v. Clapper, 286.U.S 145, 154; Agiva Life Ins: Co. V. Tremblay, 223 U. S. 185, 190; Griffin 'v. McCoach, 313 VU. S498, 507; Pacifie Em-. . ployers Insurancg Cot v. ati Accident Commi. n, 306 U.S. 493, 500; axon Co. v. Stentor Eo 313 U.S S. 487, ea : xs The Kryger case involvéd a ‘federal jurisdictional ques- tion arising under the due process clause. In that case the North Dakota. courts, had held that contract rights. which arose in Minnesota to real property in North Dakota had “been canceled’by proceedings under North Dakota law: This - Court affamed the decision of the North Dakota courts and held (per Mr. Justice Brandeis ) that doctrines of tHe cor- flict of laws are ‘a part oc the body of the common law, and an allegedly erroneous decision by. a state court upon a point ; of conflict of laws does not raise a federal question ‘under the due 4 process clause of the Constitution of the United States. The authority of that case remains unimpaired in , @ situation wherein it is claimed that the due process clause. has been violated by.a conflict of laws decision of a state court refusing to enforce rights ee oe the laws _of a foreign government.* _ “As was said 1 in Bradford 1 E lee. Co.v. £ Tapper 286 of 145, 154: “If the conflict presented were between the Jaws. . of a foreign country and those of New Hampshire. its [the Nev Hampshire] courts would be free, soe Tt must be remembered ‘that in <énited States v. Belmont, 30k U.S. 324,’and. in Guaranty Trust Co. v. United States, 304 U.S. 126, this Court reviewed decisions of the Second Circutt | Court of’ Appeals, and not decisi ons of the New York Court ot Appeals... . . 7 ‘far as the restrictions of fedéral law are concerned, « to attach legal consequences t) acts done withi# the State, without reference to t' e undertaking of the parties, entered - into at their common residence abroad, that such consequences should not be en- forced between them. *-* *” Therefore, even if it had been found that the Sov jet: ‘crees purported to confiscate for the ‘benefit of the Soviet vernment the assets in New York of a New York branch 'a Russian insuratice company, and if the decision-be Jow sted solely en the ground that rights arising in that man- ‘r are unenforceable under New York law, no question ould be presented to: this. Court :for review. It is not necessary, however, to considet in this case . ¢ problems which would be presented if the.decision bdow! sted only on that ground. . The decision of *the court ‘low can be rested or the independent and adequate. non- deral' ground that the ‘Soviet decrees did net purpert to fect the assets ipequestion, and under such circumstances, lis Court, righ gis take jurisdiction 40 review the de-: sion of the New Y ork court. Fox F im C orp. v. Muller, Sia a; LL ynch v. New. York, .293.U. 5.. 52; achtel v. Wilson, 204 U. S. 36; Johnson v. Risk, 137 U. | 0. As was said in Lynch V. New York, supra; (at pp. +-55) :. “Tt may be surmised, from the quotatioris in its Opin- ion, that the Appellate Division intérided to rest its decision upon a deternfination of ‘the application of the Fourteenth Amendment, and that the affirm- ance by.the Court of Appeals went upon the same ground, and not upon the non-federal ground of the application of the Constitution and laws of the “State. But jurisdiction cannot. be founded upon Tete leon, atta Q 18 surmise. Nor can claim of jurisdiction be sustained by reference to briefs and statements which are‘not part of the record. ’ “It is essential to the jurisdiction of this Court in reviewing a decision of a court of a State that it must appear affirmatively from the record, not only that a federal question was presented for dect- sion to the highest court of the State having juris- diction but that its decision of the federal question “Was necessary to the determination of the cause, and that it was actuaily decided or that the judg: ment as rendered could not have been given without deciding it. * * *:Where the judgment of the. state court rests on two grounds, one ‘involving a fede?al question and ‘the other not, or if it doeS net appear upon ‘Which of two grounds the judgmerit was based,’ and the gr mind independent of a federal question ts sufficient in itself to sustain. it, this C oyrt will not take Jurisdiction.” lt is submitted, therefore, that the decision of. the New York court in this case does not involve a federal question which is Subject to review by this Court. Respectfully submitted, . ss Daeg FREDERICK H. WOOD, ALBERT RAY CONNELLY, . Of Counsel for certain Receivers, as amici curiae. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0505%3A12. Public record. Not legal advice.