Mann v. Compania Petrolera Trans-Cuba S. A.

Rabin, J. P. This is an action brought pursuant to section 977-b of the Civil Practice Act by an American stockholder of an allegedly nationalized Cuban corporation. In August, 1960, by ex parte order obtained in the Supreme Court, New York County, a temporary receiver was appointed for the defendant “ Compañía Petrolera Trans-Cuba, S. A.”— a Cuban corporation which at the time had $1,800,000 on deposit in the Manufacturers Trust Company in New York. The plaintiff thereafter effected service of the summons and complaint upon the corporation by publication pursuant to an order in conformance with the requirements of section 977-b. The action was based upon the allegation that the corporation had been nationalized and dissolved by decree of the Cuban government. An answer was thereafter interposed, purportedly in behalf of the corporation, by the law firm of Rabinowitz & Boudin at the instance of one Armando Soto, the “ interventor ” of the corporation, who had been appointed as such by the Cuban government.* The president of the corporation, an exile from Cuba, retained other counsel, i.e., Arthur Goldstein, Esq., who moved to have himself substituted in place of Rabinowitz & Boudin as attorneys for the corporation. This motion came on to be heard before Hecht, J., who directed a reference to examine into the pertinent Cuban laws and decrees in order to determine what effect the Cuban order of intervention would have on the — 196 — question posed, i.e., who would have the right to designate counsel to represent the corporation in this proceeding. (28 Mise 2d 434.) Extensive hearings were conducted by the Referee at which experts on Cuban law testified. At the conclusion of the hearings the Referee rendered his report in which he concluded that the president of the corporation rather than the “interventor” Soto was entitled to the sole control of the litigation in behalf of the corporation. A motion to confirm was made and Judge Hecht confirmed the Referee’s report and granted the motion to substitute Arthur Goldstein in place of Rabinowitz & Boudin as attorneys for the corporation, ‘1 without prejudice to an application by the substituted attorneys for leave to intervene ” in the action. (32 Misc 2d 790, 794.) No appeal was taken from this order. Soto, thereafter, moved to intervene and the plaintiff cross-moved for summary judgment based upon the answer of the corporation (interposed by Goldstein) which in effect was a consent to the relief sought. Levey, J., denied the intervention application and granted summary judgment to the plaintiff.* Soto then moved to dismiss the complaint and all proceedings on the ground that the action was a collusive one. This motion was denied by Hecht, J. This appeal brings on for review the orders entered in consequence of the decisions referred to above. In denying intervention it appears that Levey, J., construed the determination of Judge Hecht—holding that the Cuban orders and decrees making Soto the “interventor” were not entitled to recognition here — as being res judicata on the question of intervention. We do not so construe that determination. An examination of the Referee’s report negatives the conclusion that the Referee determined that Soto’s appointment was of no effect here for any purpose whatever. In any event even had he so concluded he would have acted beyond the scope of the question submitted to him. The issue presented was limited to the question of who had the right to control the defense in behalf of the corporation—the “ interventor ” or the corporate president. The “ conclusions ” in his report manifest the limited purpose of the hearings. He there stated that the — 197 — president ‘ ‘ is entitled to sole control of this litigation on behalf of the defendant corporation.” Moreover, the Referee expressly-stated that the question of Soto’s right to intervene was “ outside the scope of this reference.” In fact he observed that Special Term might well permit intervention upon a proper application. Nor did the decision of Hecht, J., made on the motion to confirm the Referee’s report constitute an adjudication that Soto had no right to intervene. To the contrary, the court expressly stated (p. 794) that Soto was “ at liberty to move to intervene ” and it made its determination on the substitution motion 1 ‘ without prejudice to an application by the substituted attorneys for leave to intervene.” We conclude therefore that the consideration of the question as to Soto’s right to intervene is not foreclosed to us by reason of the failure to appeal from the order of Hecht, J., granting substitution, and we accordingly examine the question of intervention de novo. The right to intervene is found in section 193-b of the Civil Practice Act. Paragraphs (b) and (d) of subdivision 1 of that section provide that intervention shall be permitted: “(b) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or * * * “ (d) where the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of, or subject to the control of or disposition by, the court or an officer thereof.” At the outset it should be noted that this section is to be liberally construed. The present form of the statute was modelled after rule 24 of the Federal Rules of Civil Procedure in an attempt to further broaden its scope and liberalize its application (see Twelfth Annual Report of N. Y. Judicial Council, 1946, pp. 218-232). It must be observed that the issue presented is a very narrow one. We are not now concerned with the merits of the 977-b action or what its eventual outcome may be. We are concerned only with whether Soto has demonstrated the existence of facts sufficient to bring him within section 193-b so as to require that he be permitted to intervene — in effect to be heard in the litigation. The Referee and Judge Hecht, in granting substitution, concluded that as applied to the specific relief then sought, the decrees of foreign States will not be given extraterritorial — 198 — effect where persons or a res without the jurisdiction of the acting State are affected and where such decrees are of a confiscatory or similar nature as to outrage our public policy. They then concluded that the right to control litigation involving the corporation was in a sense a res without the jurisdiction, i.e., a corporate asset which could not be taken away extraterritorially under the circumstances of this case. We need not, nor do we, pass upon the propriety of the aforesaid conclusions. No appeal having been taken from the order of substitution that question is closed to us. We must now determine only whether Soto has a sufficient interest in this litigation to entitle him to intervene. Allowing him to intervene would not give force to any powers of a confiscatory nature conferred upon him by the Cuban decree, if indeed they are found to be confiscatory. The moneys on deposit in the New York bank are in the name of the corporation and title to such moneys — despite the appointment of a temporary receiver — is, even at this date (except for the summary judgment under review), in the corporation. (See Propper v. Clark, 337 U. S. 472.) There is no doubt that under Cuban law Soto is in control of the corporation * — at least with respect to the assets located in Cuba. To deny intervention at this point would be to determine the disposition of corporate assets — albeit outside of Cuba — without affording to the corporate officers recognized in the State which gave life to the corporation, an opportunity to be heard. The success of the plaintiff in obtaining relief under section 977-b depends substantially on her ability to demonstrate that the corporation has been nationalized or has ceased to do business. True, summary judgment was granted the plaintiff on that issue but the propriety of so doing is still under review. What the result would have been had that issue been contested we do not nor need we now foretell. Assuming that issue were to be contested and it be found that the corporation was not nationalized or had not ceased doing business so as to bring it within section 977-b, what would then follow! The moneys — at least title thereto — will remain in the corporation. Surely — 199 — at this point the “interventor” would have an assertable interest in the funds. That would bring him squarely within paragraph (d) of subdivision 1 of section 193-b as a person “adversely affected by a distribution or other disposition of property in the custody of, or subject to the control of or disposition by, the court or an officer thereof.” And certainly the situation is such as is contemplated by paragraph (b) of subdivision 1 of the same section in that the representation of his interest is “ inadequate ”. We need not determine that the funds could thereupon be removed to Cuba * to find an interest in the “ interventor ” sufficient to warrant intervention. The granting of the intervention motion gives Soto nothing nor does he get anything but the opportunity to defend the action. We do not determine what happens in the event he be successful should he be permitted to defend. It might well be that at that point the “interventor” could resume his efforts to have the moneys transferred to Cuba and perhaps even be successful. It suffices for the purpose with which we are here concerned to conclude that an unsuccessful termination of this action will create a situation where the ‘ ‘ interventor ’ ’ will at least have an “ interest ” in the funds on deposit in the corporate name. It is significant to note that service upon the corporation was required to be made by publication and by mailing the summons, complaint and other papers to the corporation’s office in Cuba. What purpose did that serve if not to alert those who, under Cuban law were operating lawfully in Cuba on behalf of the corporation, to the possibility that the funds here might be administered pursuant to section 977-b. May it be logically argued that the “ Cuban” corporation officials had a sufficient interest in the litigation to be served with process but an insufficient interest when they sought to respond to such process and be heard on the merits of the action? It is no argument to say that it is clear that the plaintiff is bound to succeed in this action and that, therefore, the “interventor” will never have any further right or interest to the funds in question. Given a right to defend, the “ interventor ’ ’ might convince the court that the law is not as clear as what the parties in the action now assert it to be. To dispose of the funds without affording the “interventor” an oppor — 200 — tunity to be heard could constitute an act of confiscation as-grievous as those of which the plaintiff complains with respect to the appointment of the ‘1 interventor ’ ’ in Cuba. All that the “ interventor ” seeks is the right to be heard before assets of the corporation he “ represents ” are distributed to others. This right may not be denied him. No matter how clear it may be that a cause of action in a complaint is a meritorious one and that the plaintiff is destined to succeed, the right of a party to answer such a complaint may not be abrogated (cf. City of New York v. Nadel, 11 A D 2d 652). Soto has made claim to the funds on deposit. Due process demands that the opportunity to be heard be afforded him before such claim is rejected. Particularly is such a rule applicable where, as here, the party permitted to defend has consented to the summary judgment which granted the extraordinary relief sought by plaintiff.* Accordingly, the order denying intervention and granting summary judgment should be reversed on the law and the facts, with costs, intervention granted and summary judgment denied. The appeal from the order denying the interventor’s motion to dismiss the complaint on the ground that the action is collusive and the appeal from the order denying resettlement will now be rendered academic and the appeals should be dismissed, without costs. Footnotes [*] It appears that under Cuban law an “ interventor ” holds a position in the nature of a receiver or administrator of the corporation. Soto was appointed “ interventor ” by a resolution of the Cuban Ministry of Misappropriated Property which empowered Soto “in substitution of the General Stockholders’ Meeting, the Board of Directors and the Executive Committee of [the corporation involved] to exercise all the regular and special powers vested in the said Agencies * * * all of which powers he may exercise without any limitation or recourse.” [*] Subsequently an application was made to resettle the order of Levey, J., denying intervention and granting summary judgment so as to correct the failure to recite in the order the minutes of the hearing before the Referee as well as certain exhibits. This motion was denied. An appeal from the order entered on such denial is being considered together with the above-mentioned appeals. [*] Upon the argument of the appeals the attorney for the receiver handed up a photostatic copy of what purports to be a translation of an official document from the Cuban Ministry of Industries. This document states that the appointment of Soto as “ Interventor ” was revoked and an “ Administrator ” — Mariano Morina — appointed. The document is dated July 3, 1962. It would appear that this document ought not to have any effect on the matter before us and we give it no consideration. It was not part of the record below nor was any proof offered as to its authenticity. Nor has the “Administrator” named in the document seen fit to attempt to inject himself into this action. [*] It should be noted however that but for the institution of this action under section 977-b of the Civil Practice Act the funds would in all likelihood have been transferred to a Cuban bank by the New York depository by a check drawn by the corporate officials in Cuba. The New York bank had indicated that unless an order blocking such transfer were obtained they would be compelled to honor the check and transmit the funds, [*] The courts have permitted intervention by stockholders in actions against their corporation where directors abuse their discretion in refusing to defend or fail to prosecute the defense in good faith. (See 13 Fletcher, Cyclopedia Corporations, § 5853, p. 246 and cases cited.)