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LOUGHMAN v. BRAUN

February 9, 1942

LOUGHMAN
v.
BRAUN et al.; SAME v. MULLER et al.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

In these actions motions have been made by the plaintiff for summary judgment, and the question for decision is common to each so that disposition in one opinion is expedient.

The first motion is directed to nineteen other similar causes, as appears from the numbers above listed.

 The actions are by the Receiver of the National Bank of Ridgewood in New York against stockholders, to recover assessments levied by the Comptroller of the Currency on July 29, 1937, pursuant to provisions of the applicable statutes.

 The facts sufficiently appear in the opinion of the Circuit Court of Appeals in the case of Abel et al. v. Munro et al., 2 Cir., 110 F.2d 647, to obviate the necessity for restatement. In that cause a group of such stockholders sought unsuccessfully to enjoin the collection of the said assessments.

 The inquiry is whether the judgment rendered therein on May 31, 1941, by Judge Moscowitz in this court [Abel v. Loughman, 1 F.R.D. 734] so determines the issues presented by these pleadings as to require the granting of this motion, within the contemplation of Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

 The first motion was presented to Judge Campbell on December 17, 1941 (the papers were submitted on the 29th of that month). Upon examination thereof, he concluded that, because a certain informal expression was improperly attributed to him at the time when he sent the cause to Judge Moscowitz for trial, he preferred to refer decision to another judge, and the motion appeared on my calendar on January 28, 1942. The reason for that reference was that the motion in the second cause had been argued before me on January 7, 1942.

 As to the first motion, the papers consist of respective affidavits of the plaintiff and the defendants' attorney, a replying affidavit of the plaintiff's attorney, affidavit of Abraham Fishbein, attorney for the plaintiffs in the said action of Abel v. Munro, supra, and replying affidavit thereto of the attorney for the plaintiff.

 The moving affidavit is based largely upon the opinion, findings and decree of Judge Moscowitz to which reference has been made, and copies thereof were filed with the motion papers, and were served on December 29, 1941, so that they constitute a part of this record and should be incorporated in papers on appeal from this decision.

 The pleadings consist of the complaint and the answer, to which is attached, as Exhibit B, the amended complaint in the said case of Abel v. Munro, thus incorporated by reference.

 The answer itself denies certain allegations in the complaint, of a formal nature, and pleads eight separate and distinct defenses, of which five are common to all defendants, and will be discussed on that basis.

 In spite of the five special defenses now under consideration, as opposed to the three alleged causes of action averred in the complaint in the stockholders' suit for an injunction, the substantial issues are the same, namely: whether there was a liquidation of the Ridgewood Bank undertaken by the Richmond Bank and, if so, whether it was carried to a conclusion; whether anything that the Comptroller did in levying the assessment against the stockholders of the Ridgewood Bank was fraudulent or illegal; whether there was a release of the Ridgewood Bank's stockholders' liability on the part of the Richmond Bank; and whether the Statute of Limitations is a defense to the stockholders' liability, on the theory that the action was not begun within three years from its accrual.

 It is true that the said amended complaint in the injunction suit did not assert as a separate alleged cause of action that the attempt to collect the stockholders' assessment was unconstitutional as tending to deprive them of their property without due process of law, but so much is alleged in paragraph 39 of the amended complaint.

 At best, it is merely an assertion of the same thing as appears in the first separate defense, with additional descriptive matter, and it would have to stand or ...


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