Pennsylvania Steel Co. v. New York City Ry. Co.

229 F. 120, 143 C.C.A. 396, 1915 U.S. App. LEXIS 1556

Opinions

WARD, Circuit Judge.

Benjamin Oppenheim filed a petition in the District Court praying that the receiver of the Metropolitan Street Railway Company—

‘be required to retain in his hands sufficient moneys to] pay any judgment which may be recovered by the said Benjamin Oppenheim against the said Metropolitan Street Railway Company or the other defendants in said action brought by him in the New York Supreme Court, New York county, until the final determination of said action. The sum retained should be $300,000.”

The cause of action sued on in the Supreme Court was that the Metropolitan Company and certain of its agents, officers, and directors had maliciously conspired' to have the plaintiff disbarred on. the false charge, sustained by bribed witnesses, that he had himself suborned witnesses in a negligence action against the company in which he was attorney for the plaintiff. The chronology is as follows:

March 23, 1901, upon charges filed by the Metropolitan Company, the petitioner was disbarred by the Appellate Division of the Supreme Court, First Department’; in June, 1910, the petitioner discovered the existence of documentary evidence tending to prove that the witnesses against him in the disbarment proceeding had been bribed and suborned to commit perjury by the Metropolitan Company and certain of its agents, officers, and directors; May 26, 1911, the petitioner moved in the Appellate Division to have the order of disbarment vacated ; February 7, 1913, the order was vacated and the petitioner reinstated ; September 24, 1914, the petitioner began the suit in the Supreme Court; November 13, 1914, he filed this petition.

The court below, January 12, 1910, made a general order that no claim should be filed against the estate of the Metropolitan Company after March 1, 1910, and that they should be filed nunc pro tunc as of January 15, 1908. The District Court denied the petitioner’s motion, on the ground that his claim was contingent on January 15, 1908, and therefore not provable. We shall affirm the order on somewhat different grounds.

The petitioner has never filed a claim in this proceeding, nor even asked permission to do so. He has selected another and different forum in which to assert his rights. In this proceeding he is an entire stranger, and has no standing to ask that the winding up of the estate be delayed to await the outcome of his suit in the state court. Even if he had a standing, the disposition of his petition by the court below was a matter of discretion, which is not appealable, unless the discretion was abused.

We see no abuse of discretion. Any claim that the petitioner had was complete when he was disbarred March 23, 1901, and action thereon was barred by the statute of limitations (section 382 of the New York Code of Civil Procedure) six years thereafter, viz., March 23, 1907, or ten years thereafter, viz., March 23, 1911 (section 388). Recovery would therefore seem to be impossible. He did not need to await bringing suit until the order of the Appellate Division disbarring him had been vacated. That was not res adjudicata between him and the Metropolitan Company. It was in a proceeding instituted, not for the benefit of the Metropolitan Company, but for the public.

The petitioner’s claim is not for vindication, which he has accomplished by his proceedings in the Appellate Division, but for money damages, arid should be treated like all other money claims. His conduct has been marked by laches throughout. He waited nearly a year after discovering the evidence on which he now relies before applying for reinstaternent to the Appellate Division. After he. was reinstated, he waited ove'r a year and a half before bringing suit. We can see no equity in delaying the winding up of this estate, now near at hand, or in taking out of it, at the expense of diligent creditors, a fund to await tire determination of his suit in another forum.

The order is affirmed.

On appeal from an order of the District Court of the United States for the Southern District of New York, which denied the application of Benjamin Oppenheim, intervening petitioner, for an order directing Douglas Robinson, as receiver of the Metropolitan Street Railway Company, to retain in his hands sufficient money to satisfy any judgment which said Oppenheim may recover in an action now pending in the Supreme Court of New York against said railway company and the individual defendants who are alleged to have been directors and employés of the said railway company at the times the acts complained of took, place. Oppenheim alleges that the defendants on or about January 5, 1900, falsely and maliciously preferred charges of misconduct against him, accusing him of having caused false testimony to be .given in an action to recover damages brought against the railway company by Harriet Nugent, an infant, which resulted in a verdict in her favor for $5,000; that as a result of charges against him he was disbarred.