Alba Trading Co. v. Constants

181 Misc. 778, 47 N.Y.S.2d 138, 1944 N.Y. Misc. LEXIS 1724

• Court: New York Supreme Court
• Decided: January 20, 1944
• Status: Published

Opinion

Pecora, J.

Disposition of this motion to dismiss the supplemental complaint herein was held in abeyance pending certification by the court to the Administrator of the Office of Price Administration of the existence of the present action, pursuant to subdivision (d) of section 205 of the Emergency Price Control Act of 1942 [U. S. Code, tit. 50, Appendix, § 925, subd. (d)] Following such certification, the court was advised by letter dated November 30, 1943, signed by the Chief Enforcement Attorney, filed herewith, that the question of intervention had been studied and that the Administrator had decided not to intervene. As indicated by the court in its opinion herein, dated November 15, 1943 (181 Misc. 248), the language of subdivision (e) of section 205 of the Emergency Price Control Act [U. S. Code, tit. 50, Appendix, § 925, subd. (e)] is susceptible of the interpretation that the Administrator is required to bring an action in all cases other than those where consumer-purchasers are involved. In fact, certification was made to the Administrator in order that, if he saw fit, he could contest such construction. Further study of the provisions of the Act convinces me that any remedy which exists against the defendants herein must under subdivision (e) of section 205 be pursued by the Administrator and cannot lie availed of by plaintiff, who is not a consumer-purchaser. The motion to dismiss must therefore be granted. Settle order.