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Perutz v. Bohemian Discount Bank In Liquidation

Supreme Court of New York, Appellate Division

February 13, 1952

MARY PERUTZ, as Administratrix of the Estate of ARTHUR PERUTZ, Deceased, Appellant,
v.
BOHEMIAN DISCOUNT BANK IN LIQUIDATION, Respondent.

Page 387

APPEAL from a judgment of the Supreme Court, entered February 7, 1951, in New York County, granting a motion by defendant, made at the close of the entire case, for a dismissal of the complaint by the court at a Trial Term (COHALAN, J.).

COUNSEL

Lincoln Orens for appellant.

Philip F. Farley of counsel (Anna H. Isenschmid with him on the brief; Topken & Farley, attorneys), for respondent.

DORE, J.

Plaintiff, administratrix of the estate of her deceased husband, a former employee of a Czechoslovakian bank, the assets of which have been acquired and the liabilities assumed by defendant-respondent, a successor bank, appeals from judgment in defendant's favor dismissing the complaint after trial before the court without a jury.

All relevant facts were stipulated to by both parties in a written stipulation submitted to the trial court, and Doctor Paul Hartmann who testified as a qualified expert on Czechoslovakian law was, also by stipulation, called as a witness for both plaintiff and defendant; so that there are no disputed issues of fact or of law in this record.

Plaintiff's husband came to the United States in 1940, became an American citizen and resided here until his death on June 12,

Page 388

1949. Under an agreement with defendant's predecessor bank, plaintiff concededly is entitled to a pension from the bank commencing in 1940. By a previous judgment consented to in November, 1942, the Supreme Court of this State granted plaintiff's intestate all sums due under the pension contract up to October 31, 1942. This action by the intestate's legal representative is for the amounts due and owing and concededly unpaid under the same contract from November, 1942, to date of trial. Before his death, plaintiff's intestate had attached in New York funds of defendant as successor bank.

The parties expressly stipulated that under a written contract, valid under Czechoslovakian law, and pursuant to the pension agreement entered into between defendant's predecessor and plaintiff's intestate, the employee 'became entitled to' a pension of a stipulated amount per month commencing February 1, 1940. The judgment here appealed from is a final judgment on the merits in defendant's favor after trial. If this judgment in defendant's favor dismissing the complaint is affirmed, plaintiff is forever barred from judgment to which she is entitled by settled concepts of fairness and justice and also of law under the expert's testimony and decisions of our courts.

The issue is not whether failure to pay plaintiff in American dollars constitutes breach of the pension contract; the issue is whether plaintiff is entitled to judgment even though, before judgment, a license has not been secured.

At trial, Dr. Hartmann testified that under Czechoslovakian law the employee, even if he was a New York resident at the time the payments in question became due, could prosecute and obtain judgment against the bank, the employer, in an action in Czechoslovakia, and under such law the currency regulations of that country would be no defense or bar to judgment in such action 'even though no license were obtained.' He testified further as follows: 'Q. Dr. Hartmann, would the currency regulations or laws of Czechoslovakia be a defense to such an action in Czechoslovakia, and bar a judgment in favor of the plaintiff under Czechoslovak law, even though no license were obtained from the Czechoslovak National Bank permitting payment by the employer to the employee? A. No. It is a settled practice of the Czechoslovak Supreme Court that the fact that no license was granted for a payment which, under the law of Czechoslovakia requires license, that such fact is no valid defense for an action for performance.' He said that the Supreme Court was the highest court in Czechoslovakia. He further testified:

Page 389

'The Court: What would that mean under the laws of Czechoslovakia, that this plaintiff would have no right to bring this action here unless he got permission from their consul here?

'The Witness: No, no, the question, as I understand it, referred to payment. But, there is no law preventing a person from bringing the action in any country.'

He said the employee 'could get judgment' in Czechoslovakia and by the same token he could bring an action in this country and 'get judgment here.' It was only when execution issues that a license from the National Bank is required. He added that the laws of Czechoslovakia prevent payment by a resident to a non-resident or by a resident 'into a foreign country' except pursuant to a license from the National Bank. When asked the consequences of payment by a Czechoslovakian resident to a ...


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