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EPSTEIN v. BROWNELL

December 5, 1956

Isidore I. EPSTEIN and Seymour Malman, Plaintiffs,
v.
Herbert BROWNELL, Jr., Attorney General of the United States, Defendant



The opinion of the court was delivered by: BYERS

These are cross-motions for summary judgment under Rule 56, 28 U.S.C.A., and both sides correctly assert that it clearly appears that there are no issues of fact which require adjudication.

The plaintiffs seek judgment against the defendant in the sum of $ 19,883.02 with interest from January 24, 1956; this is the amount paid by them for New York City real estate taxes and interest, levied against certain property in the Borough of Richmond, which the plaintiffs purchased from the defendant, pursuant to the terms of their written offer dated July 29, 1955 which was accepted in writing for the defendant under date of August 3, 1955.

 These two instruments are duly pleaded and their terms are not in dispute. The controversey is over their legal effect, in view of matters to be explained.

 There are before the court on these motions not only the pleadings but the affidavits of Oliver E. Nickerson (October 3, 1956) and Guy T. Reid (October 22, 1956) submitted on behalf of the defendant; and of Isidore I. Epstein (November 5, 1956) and Leon Malman (November 8, 1956) submitted for the plaintiffs. Epstein is one of the plaintiffs and in his affidavit describes himself thus:

 'I am a member of the Bar of the State of New York, though not in active practice, but engaged in the real estate business;'

 the deponent Malman is the attorney of record for the plaintiffs.

 The undisputed facts are to be thus summarized:

 The real estate consists of three parcels completely described in the offer to purchase constituting Exhibit A attached to the defendant's motion papers. The descriptions are not literally the same in the indenture, being the quit claim deed hereinafter referred to, which is Exhibit D attached to the same papers, but there is no question raised on this motion concerning the extent or boundaries of the property, and thus a detailed description by metes and bounds is not required as part of this decision. The taxes in question seem to have been assessed during the period commencing November 19, 1942, and as at March 5, 1956, amounted with interest and penalties to the sum of $ 19,883.02. The figures are broken down in the affidavit of Leon Malman above referred to, as follows: Lot 1 *fn1" Second half, 1942/1943 to 1953/1954 $15,682.85 Second half, 1953/1954 to 1954/1955 1,755.19 First half, 1955/1956 851.59 Lot 275 * Second half, 1942/1943 to 1953/1954 1,317.10 Second half, 1953/1954 to 1954/1955 151.03 First half, 1955/1956 75.26 Total $19,833.02.

 The devolution of title on the part of the defendant as successor to the Alien Property Custodian was as follows:

 Title was formerly in The Ultra Corporation, a New York corporation whose entire capital stock consisted of 200 shares, which was the subject of Vesting Order No. 393 dated December 29, 1942, issued by the then Alien Property Custodian, as enemy owned; ownership continued in the corporation until April 14, 1953 when it was conveyed and assigned to the Attorney General as the successor to the Alien Property Custodian pursuant to Dissolution Order No. 100 issued by the Attorney General under date of March 27, 1953. The directors of the said corporation, pursuant to the provisions of the said Vesting Order, were the nominees of the Alien Property Custodian.

 The Nickerson affidavit recites that the property had been on the market for approximately ten years prior to the month of July, 1955, 'but the Office of Alien Property and its predecessor in title received few offers for the purchase of the property inasmuch as the outstanding taxes on the property were substantial and, apparently, because the property was in a rather isolated location.'

 Seemingly the approval of the proposed bridge from Brooklyn to Staten Island in April of 1955 indicated the possibility of a sale, and on July 14, 1955 the defendant caused newspaper advertisements to appear in the Brooklyn Spectator, the New York Times and the Staten Island Advance, soliciting sealed bids, and subsequently thereto, namely under date of July 29, 1955, such bids having been received, were opened at 2:00 P.M. in the office of James J. Burke, 7425 Amboy Road, Tottenville, Staten Island, New York.

 On that occasion, Nickerson announced in the presence of sixteen other persons including these plaintiffs and other bidders, the terms of sale; his affidavit states:

 'I specifically referred to the fact that all bids on the property in question were submitted subject to any unpaid taxes, interest and penalties against the property. At that time I referred, in the presence of all those in attendance, to correspondence I had received from the Tax Office of the City of New York in reference to the taxes charged against the property upon which bids were being received. The attention of the assembled bidders was called to the amount of taxes, interest and penalties in arrears on said property which was approximately $ 20,000. A discussion ensued between the bidders and myself for approximately fifteen minutes during which time I answered all questions submitted. All this occurred before the bids were opened.

 'I observed the presence of Mr. Isidore I. Epstein and Mr. Seymour Malman during the entire course of the discussion in which I had pointed out the substantial New York City taxes in arrears on the property and in which I had explained that the successful bidder would have to pay all unpaid taxes, interest and penalties on the property.

 'Mr. Epstein and Mr. Malman did not attempt to withdraw their bid or object to going forward with the opening of bids. I then opened the bids and the bid of Messrs. Malman and Epstein (a true photostatic copy of which is hereby ...


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