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AMERICAN JEREX CO. v. UNIVERSAL ALUMINUM EXTRUSION

March 7, 1972

AMERICAN JEREX COMPANY, also known as American Ladder Company, a division of Chatham Corporation, Plaintiff,
v.
UNIVERSAL ALUMINUM EXTRUSIONS, INC., Defendant


Neaher, District Judge.


The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

NEAHER, District Judge.

 Plaintiff, a Delaware corporation, sued defendant, a New Jersey corporation, in the New York Supreme Court, Nassau County, to recover a money judgment for $40,261.57. Defendant removed the action to this court on grounds of diversity of citizenship. The complaint alleges that certain raw aluminum billets belonging to plaintiff, having a reasonable value of $40,261.57 were wrongfully received by defendant, which converted them to its own use and refused plaintiff's demand either to return the billets or pay their reasonable value. After removal, defendant served an answer denying the material allegations of the complaint and asserting six affirmative defenses and three counterclaims against plaintiff.

 Upon commencing the action, plaintiff obtained ex parte in the State court a warrant of attachment against property and "debts owing to the defendant" within the State sufficient to satisfy plaintiff's demand and related costs and expenses. The attachment order also fixed plaintiff's undertaking in the sum of $6,200 to ensure defendant payment of all legal costs and damages should it later be decided that plaintiff was not entitled to the attachment.

 Defendant has moved (1) for summary judgment dismissing the action on the ground that plaintiff lacks capacity to sue; and (2) to vacate the attachment and void all levies made thereunder on the grounds that the attachment was improperly granted, is unnecessary for jurisdiction or security, and is unduly oppressive to defendant. In addition, a non-party, The First Pennsylvania Banking and Trust Company, of Philadelphia, Pennsylvania, designating itself as "petitioner" (hereinafter referred to as such), has filed a motion for leave to intervene in the action for the purpose of making a motion to vacate plaintiff's attachment and levies thereunder. As part of that motion, petitioner also asks the court to vacate and/or discharge the attachment, hold void any and all levies thereunder, and declare petitioner the owner of all defendant's accounts receivable which are subject to the attachment. The grounds urged for this relief are that petitioner is the assignee of those accounts receivable, is entitled to receive the proceeds thereof, and its interests will be impaired unless permitted to intervene and relief granted. The same attorneys appear for defendant and petitioner on their respective motions.

 1. Defendant's Motions

 In support of its motion for summary judgment, defendant points to the name of plaintiff in the caption of the complaint and the description of plaintiff in paragraph 1 thereof. The caption reads:

 
AMERICAN JEREX COMPANY, also known as AMERICAN LADDER COMPANY, a division of CHATHAM CORPORATION,
 
Plaintiff.

 Paragraph 1 of the complaint describes plaintiff in these terms:

 
1. At all times hereinafter mentioned, plaintiff AMERICAN JEREX COMPANY, also known as AMERICAN LADDER COMPANY, was a division of CHATHAM CORPORATION, a corporation duly organized and existing under and by virtue of the laws of the State of Delaware.

 Defendant contends the foregoing conclusively establishes plaintiff's lack of capacity to sue (an affirmative defense raised in defendant's answer), since a division of a corporation is not a legal entity.

 The court disagrees and considers defendant's contention captious. The complaint was verified in accordance with New York State practice prior to removal to this court. If the caption creates any doubt as to the identity of the real party in interest, i.e., Chatham Corporation, a glance at the "Corporate Verification" would dispel it. Sworn to by Alan Birkenfeld, as "treasurer", the verification recites that it is based upon "his own personal information and the records of the plaintiff corporation " (emphasis supplied).

 Birkenfeld's affidavit in opposition to this motion reaffirms that he is its treasurer; that the corporation is organized under the laws of the State of Delaware and qualified to do business in New York; that during the latter half of 1969 the corporation was engaged in the business of manufacturing ladders in Amityville, New York, under the trade name of American Jerex Company, and earlier under the trade name of American Ladder Company; ...


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