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Republic of China v. National City Bank of New York. Petition of Republic of China


decided.: February 4, 1952.


Author: Chase

Before CHASE, CLARK and FRANK, Circuit Judges.

CHASE, Circuit Judge.

The appellants have appealed from two orders which, together, granted the motion of the appellees made pursuant to Section 51-a of the New York Civil Practice Act,*fn1 for leave to give notice of the pendency of the action to alleged adverse claimants and stayed the suit for one year from the date that such notice was given. The appellants have also filed a petition for mandamus to obtain relief from the orders in the event that their appeal is dismissed.

The Republic of China, recognized by the United States as the lawful government of that country, the Shanghai-Nanking Railway Administration, an agency of the Republic of China, and two individuals, Moh Han and Sau Chen, who are the director and the deputy director, respectively, of that agency brought suit to recover a credit balance on deposit with The National City Bank of New York in an account standing in the name of "Shanghai-Nanking Railway Administration."

The complaint alleged that payment of the credit balance had been demanded and refused in April 1949; that subsequently the two named individual appellants were certified by the Secretary of State of the United States, pursuant to the provisions of Section 632 of Title 12 U.S.C.A.,*fn2 as the persons authorized to receive the balance in the account but that their demand for payment had again been refused. Jurisdiction of the suit is based on Sec. 632 of Title 12 U.S.C.A.*fn3

The appellee, before answer, moved for and obtained the orders above noted. The affidavits in support of the motions alleged that claimants adverse to the appellants had demanded payment of the credit balance in the above named account and that the bank had refused the demands to all claimants because it was unable to determine which of them was entitled to payment. Upon finding that there were such adverse claimants the court entered the orders appealed from.

We cannot reach the merits of this appeal since these orders were not final in the jurisdictional sense. The first order merely permitted the appellee to give notice of the suit to adverse claimants for the purpose of obtaining their intervention and cannot be distinguished from an order permitting intervention which we have held to be not final and, hence, not appealable. Sorensen v. United States, 2 Cir., 160 F.2d 938. The second order only postponed the prosecution of the suit and, as such, lacked the finality necessary to give this court jurisdiction to review it at this time. Beckhardt v. National Power & Light Co., 2 Cir., 164 F.2d 199; Phillips v. Securities and Exchange Commission, 2 Cir., 171 F.2d 180. The contention that the stay order is in effect a temporary injunction reviewable under Section 1292 of Title 28 U.S.C. has been made on the authority of Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S. Ct. 310, 79 L. Ed. 440 but, in view of the latter decision in City of Morgantown v. Royal Ins. Co., 337 U.S. 254, 69 S. Ct. 1067, 93 L. Ed. 1347, we cannot agree.

Nor is this a situation where mandamus is an appropriate remedy. Nothing has been done to deprive this court of jurisdiction to review these orders upon appeal from a final judgment. See, Mottolese v. Kaufman, 2 Cir., 176 F.2d 301; Czuzcka v. Rifkind, 2 Cir., 160 F.2d 308. Furthermore, there are no over-riding public policy considerations which make prompt review imperative. See, Ex Parte Kumezo Kawato, 317 U.S. 69, 63 S. Ct. 115, 87 L. Ed. 58. On the contrary, there has but been a time fixed within which the case cannot be brought to trial and, since the district court's docket is so congested that very likely the case would not ordinarily be reached for trial before the expiration of the stay, we can see no reason for granting the extraordinary relief requested.

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