The opinion of the court was delivered by: LEVET
This is a motion for an order under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. to dismiss the above-entitled action as against the defendants Lyon McCandless and Clare Paquin (also known as Clare P. McCandless) on the ground that this action is in the wrong district because (1) the jurisdiction of this Court is invoked solely on the ground that the action arises under the Constitution and the laws of the United States; and (b) that said defendants do not reside in this district.
The said defendants are husband and wife and are living together. Likewise, it appears that they are also associated in a business venture involving a New York corporation, Glass Production Methods, Inc., also one of the above-named defendants. The complaint includes misrepresentation and breach of warranty.
The plaintiff is an agency of the United Nations created by Resolution No. 410 of the Fifth Session of the General Assembly of the United Nations. The matter in controversy is alleged to exceed, exclusive of interest and costs, the sum of $ 3,000. Plaintiff alleges that jurisdiction of this Court is conferred by Title 22 U.S.C.A. § 288a and Title 28 U.S.C.A. § 1331.
The moving defendants were served with a summons and complaint on June 1, 1956 on board the yacht 'Vauntie' at the basin of the New York Athletic Club, Pelham Manor, in the County of Westchester, State of New York.
The defendants claim to be residents of 155 Putnam Park, Greenwich, Connecticut. This is an apartment which defendants subleased from the original tenant effective June 1, 1955. Effective June 1, 1956 the premises were in turn sublet by the defendants to others through to September 1956. In the Fall, defendants state, they will return to this apartment. Defendants say they are living on the boat during the summer months.
Prior to June 1, 1955, when defendants occupied the Greenwich, Connecticut apartment, they lived at 12 Bank Street, New York City. After July 1, 1955, they still spent some time on the boat. Asked on examination before trial, at first the defendant Lyon McCandless testified that the boat was 'our physical residence.'
At the time of service, the boat was based at Pelham, New York, in the basin of the New York Athletic Club. Certain facts indicated defendants' continued connection with New York State after they became sub-tenants of the apartment in Connecticut.
The plaintiff does not claim that there is a diversity of citizenship between the plaintiff and the defendants. It does claim, however, that jurisdiction is conferred upon this Court by reason of Section 288a of Title 22 U.S.C.A., and Section 1331 of Title 28 U.S.C.A.
Section 1331 provides as follows:
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $ 3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States.'
'International organizations shall enjoy the status, immunities, exemptions, and privileges set forth in this section, as follows: * * *
'(iii) to institute legal proceedings.'
It is clear that this is a civil action arising under the treaties creating the United Nations and the law permitting international organizations to institute legal proceedings in the Federal Courts. International Refugee Organization v. Republic S.S. Corp., 4 Cir., 1951, 189 F.2d 858. However, the issue to be ...