The opinion of the court was delivered by: MCLEAN
The three plaintiffs in this action are nationals and residents of Rumania. They sue "on behalf of themselves and all other residents of Romania, similarly situated" for a judgment declaring that Section 2218 of the New York Surrogate's Court Procedure Act, formerly Section 269-a of the Surrogate's Court Act, is unconstitutional.* They also seek an injunction restraining five New York Surrogates and the Comptroller of the State of New York from enforcing and applying it.
The prior history of this action may be briefly stated. In the spring of 1967 plaintiffs moved for an order convening a three-judge court pursuant to 28 U.S.C. § 2281. They also moved for an injunction pendente lite. The district court denied the preliminary injunction. It also denied the request for a three-judge court on the ground that, although a substantial federal question was raised, this question was one of federal "supremacy" which, under Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965), was to be decided by one judge, not by three. Goldstein v. Cox, 66 Civ. 4487 (S.D.N.Y. April 4, 1967).
On September 27, 1967, the Court of Appeals, from the bench, affirmed the order of the district court. The Supreme Court, however, vacated the order of the Court of Appeals and remanded the case to the Court of Appeals "for further consideration in light of Zschernig v. Miller." (389 U.S. 429, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968).) Goldstein v. Cox, 389 U.S. 581, 88 S. Ct. 694, 19 L. Ed. 2d 781 (1968).
The Court of Appeals thereupon reversed the order of the district court and remanded the case for consideration of the constitutional issues by a three-judge court. Goldstein v. Cox, 391 F.2d 586 (2d Cir. 1968).
Plaintiffs then moved for summary judgment. That is the motion which we are now called upon to decide.
The motion is supported only by an affidavit of plaintiffs' attorney which is devoted primarily to a discussion of the law. It contains few facts. As to plaintiff Goldstein, it says only:
"The Surrogate, in the judicial settlement in the Estate of Maurice Siegel, wherein the rights of plaintiff, Anghel Goldstein are involved, decreed:
'Ordered, Adjudged and Decreed that the distributive share to which the said Angel Goldstein is entitled be paid into this Court by depositing the sum of $2,230.40 with the Treasurer of the City of New York to the credit of this proceeding, and the Treasurer of the City of New York hereby is directed to deposit said sum of $2,230.40 in any savings bank located in the County of Bronx for the benefit of said Angel Goldstein and subject to the further order of this court, and it is further'."
The affidavit contains a similar statement as to plaintiff Fundi, reading as follows:
"The defendant, Surrogate Samuel DiFalco, in the estate of Jerotheos Stavrou, in which plaintiff, George Fundi is a distributee, in settling said estate, ordered (NYLJ, 8/3/65), pertinent hereto, as follows:
'Any sum payable to legatees or distributees in Rumania will be deposited in court pursuant to section 269-a of the Surrogate's Court Act (Matter of Greenberg, NYLJ, June 16, 1964 (Cox, S.), aff'd App.Div. 1st Dept. NYLJ.'"
The text of the affidavit does not refer to plaintiff Nasta. Annexed to the affidavit, however, are copies of letters from the office of the New York Comptroller dated respectively February 28, 1962 and November 16, 1964, the first of which is addressed to Juliu Nasta in Bucharest, Rumania, and the second to plaintiffs' attorney. Each letter is captioned:
Atty-in-Fact for Opreana ...