The opinion of the court was delivered by: HERLANDS
The Government brings these five actions to recover $ 3,500 on the defendant's bonds. The bonds were conditioned to insure the departure of the aliens named in the respective bonds upon the aliens' failure to maintain their status (as students or as visitors for pleasure) under which status they were temporarily admitted to the United States, and also to insure their departure, in any event, on or before a fixed date.
Plaintiff has moved and defendant has cross-moved for summary judgment in each of the five cases. Certain facts in each of the said cases have been stipulated.
The motions and cross-motions for summary judgment are denied for the reasons hereinafter set forth.
Although both parties have moved for summary judgment, the Court cannot grant any of the motions when, as here, the record discloses genuine triable issues of fact. 6 Moore, Federal Practice, para. 56.13 (2d ed. 1953).
An analysis of the record reveals that there are such genuine factual issues as to the meaning of certain clauses in the bonds and the parties' intention with respect to those clauses.
The construction of a contract ordinarily poses an issue of law for the court. But this rule applies only where there is no factual issue. Where the contract contains ambiguous terms and the parties' intention in using such language is subject to bona fide and material dispute, parol evidence is admissible to resolve those factual issues; and, consequently, a motion for summary judgment must be denied. Boro Hall Corp. v. General Motors Corp., 2 Cir., 1947, 164 F.2d 770; Rolle Mfg. Co. v. Marco Chemicals, Inc., D.C.N.J.1950, 92 F.Supp. 218. Cf. Michael Rose Productions v. Loew's Incorporated, D.C.S.D.N.Y.1956, 143 F.Supp. 606.
This proposition is expressive of the policy expounded in Doehler Metal Furniture Co. v. United States, 2 Cir., 1945, 149 F.2d 130, 135:
'We take this occasion to suggest that trial judges should exercise great care in granting motions for summary judgment. A litigant has a right to trial where there is the slightest doubt as to the facts * * *. Such a judgment, wisely used, is a praiseworthy time-saving device. But, although prompt despatch of judicial business is a virtue, it is neither the sole nor the primary purpose for which the courts have been established. Denial of a trial on disputed facts is worse than delay. * * * The district courts would do well to note that time has often been lost by reversals of summary judgments improperly entered.'
In the years since the above pronouncement, the Court of Appeals for this circuit has continued to sound emphatic warnings that the summary disposition of lawsuits should be utilized only with meticulous care and utmost caution. Subin v. Goldsmith, 2 Cir., 1955, 224 F.2d 753, certiorari denied 1955, 350 U.S. 883, 76 S. Ct. 136, 100 L. Ed. 779; Alvado v. General Motors Corp., 2 Cir., 1955, 229 F.2d 408; Teung v. Dulles, 2 Cir., 1956, 229 F.2d 244; United States v. Holland America Line, 2 Cir., 1956, 231 F.2d 373; Syracuse Broadcasting Corporation v. Newhouse, 2 Cir., 1956, 236 F.2d 522. Cf. Wright, Rule 56(e): A Case Study On The Need For Amending The Federal Rules, 69 Harv.L.Rev. 839, 856 (1956).
None of the five cases at bar are factually identical. However, they do disclose the same basic fact pattern. A statement of the pattern embodied in all five cases will facilitate the discussion of common issues of fact. Variant issues, posed by particular facts in the individual cases, will be separately discussed.
Four of the aliens applied for temporary admission to the United States as students under section 4(e) of the Immigration Act of 1924, former 8 U.S.C.A. § 204(e).
Two other aliens (a single suit was brought for collection of the bonds posted for Berta Appel and her infant son Chaskel Appel) applied for temporary admission as visitors, under sections 3(2) and 15 of the Immigration Act of 1924, former 8 U.S.C.A. §§ 203(2) and 215.
All of the aliens had French travel documents.
Each was allowed to enter the United States on condition that he post a bond guaranteeing that he maintain the status under which he was admitted and that he leave the United States on or before a certain date (referred to herein as the departure date). Such bonds were posted by defendant on behalf of the aliens.
In every instance, the departure date accrued before the expiration date of the alien's French travel documents.
In all five cases, the aliens remained in the United States beyond the departure date, in violation of both the condition upon which they entered the United States and the terms of the bond.
Separate deportation proceedings were instituted against each of the aliens.
Eventually, each of the aliens was admitted to the United States for permanent residence. This was accomplished either by the method of voluntary departure and pre-examination (former 8 C.F.R. Part 142) or by the method of adjustment of status under section 6 of the Refugee Relief Act of 1953, 50 U.S.C.A.Appendix § 1971 et seq.
In no case was the record of admission to the United States for permanent residence expressly made retroactive to the date of the original entry.
In each case, well before the alien was permanently admitted to the United States, the Government informed the defendant of the breach of the conditions of the bond.
In two instances (re the bonds posted for Berta and Chaskel Appel and the bond posted for Isaac Appel), an action on the bond was instituted before the alien was permanently admitted to the United States. In the other three ...