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RICHTER v. EMPIRE TRUST CO.

August 13, 1937

RICHTER
v.
EMPIRE TRUST CO. et al.



The opinion of the court was delivered by: LEIBELL

LEIBELL, District Judge.

Defendants Harold I. Thompson and William D. Frad move to dismiss the bill of complaint on the ground that it fails to state facts sufficient to constitute a cause of action against said defendants and for want of equity.

The plaintiff seeks to recover the sum of $36,620 paid to defendant Frad in satisfaction of a gambling debt. According to the allegations of the complaint, plaintiff and Frad played cards aboard a steamship en route from New York to San Francisco and "by the time said steamer reached the Port of San Francisco" the sum of $36,620 was claimed by Frad to be due. Plaintiff thereupon made and delivered his check in that sum to frad. The check was drawn on the Continental Illinois Bank & Trust Company, a banking institution carrying on business in the city of Chicago, State of Illinois.

 Thereafter, the check was delivered by Frad to the defendant Empire Trust Company in New York, and through said bank was presented for payment in Chicago. The check was paid, and the complaint alleges that the proceeds are now held by defendant Empire Trust Company, which has received notice of plaintiff's claim. The defendant Thompson is joined as a party because he claims an interest in part of the fund now held by the bank.

 Plaintiff's bill of complaint prays for the following relief:

 "1st: That defendant, Empire Trust Company, discover and disclose to plaintiff all and singular its receipts and payments of money, and its disposition of said money or any part thereof.

 "2nd. That an accounting by defendants with plaintiff respecting all and singular said moneys so received and held by defendant, Empire Trust Company, and ascertaining the amount of said moneys justly and equitably due to plaintiff with the interest thereon accrued.

 "3rd: That the rights, if any, of defendant, Harold I. Thompson, in and to said fund or any part thereof be adjudicated.

 "4th: That such money so traceable in said account be impressed with a trust in behalf of plaintiff.

 "5th: That the above described moneys and the entire sum thereof is the property of plaintiff.

 "6th: That plaintiff recover from defendants the said amount which shall be found due, as aforesaid, to plaintiff, with costs.

 "7th: That defendants be enjoined and restrained from paying out, receiving or in any manner interfering with any portion of the moneys hereinbefore referred to on deposit with said defendant, Empire Trust Company.

 "8th: That defendant, Empire Trust Company, pay to plaintiff the moneys in its hands deposited by said William D. Frad and belonging to this plaintiff."

 It is fundamental that on this motion to dismiss the complaint, the court cannot look beyond the allegations set forth in the complaint. But, for the purposes of pleading and proof, a Federal District Court will judicially notice "the law of any state of the Union, whether depending upon statutes or upon judicial opinions." Lamar v. Micou, 114 U.S. 218, 223, 5 S. ...


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