# Zittman v. McGrath McCarthy/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
* Dissenting Opinion Reed
United States Supreme Court
341 U.S. 446
Zittman v. McGrath McCarthy
Argued: Feb. 28, 1951. --- Decided: May 28, 1951
On December 11, 1941, petitioner Zittman, holder of claims against the Deutsche Reichsbank and the Deutsche Golddiskontbank, caused attachment warrants to be issued by the appropriate New York court and levied on accounts maintained by the debtors in New York City with the Chase National Bank. On January 21, 1942, petitioner McCarthy, holder of a claim against the Reichsbank, also attached its accounts with the Chase Bank. Both attachments were followed by state court actions which were pursued to default judgments. The judgments remain unsatisfied because the attached funds were and are 'frozen' by federal government foreign funds controls. The New York courts have repeatedly extended the ninety-day limitation provided for the sheriff to reduce the accounts to his possession or commence an action to do so, so that the attachments, like the judgments, are outstanding.
The accounts were frozen June 14, 1941, by Executive Order No. 8785, which extended to assets of German nationals freezing controls initiated by Executive Order No. 8389, issued April 10, 1940, by the President, pursuant to the powers vested in him by § 5(b), of the Trading With the Enemy Act. The general effect of the basic order was to forbid 'transactions' in the assets of blocked nationals, including all 'transfers' of such funds. In October, 1946, more than four and a half years after the levy of these attachments, the Alien Property Custodian issued Vesting Orders, which vested 'that certain debt or other obligation owing to' the German bank 'and any and all rights to demand, enforce and collect the same.' The Chase Bank notified the Custodian that, due to the outstanding attachment levies, it could not release the accounts. Some sixteen months later, the Custodian petitioned the United States District Court for the Southern District of New York for a declaratory judgment that the petitioners 'obtained no lien or other interest in' the attached accounts and that he was entitled to take the entire balances. The District Court granted the relief sought, and the United States Court of Appeals for the Second Circuit affirmed, per curiam, solely on the authority of Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480. We granted certiorari. The question is whether the attachment levies were 'transfers' forbidden by Executive Order No. 8389.
I. Rights of the Judgment Creditors Under New York Law.
In the New York courts, petitioners invoked one of several provisional remedies which, from time out of mind, New York has extended to its citizens against their nonresident debtors. These, in appropriate circumstances, may take the form of receivership or attachment. While these two remedies differ in nature and incidents, they are alike in being available at the commencement or during the pendency of an action, are not independent but auxiliary in character, and are not designed finally to adjudge substantive rights but to secure such judgment as may be rendered. As employed in this case, attachment also was the sole basis of jurisdiction.
The attachment levy on bank balances is perfected by service of a certified copy of the warrant of attachment on the banking institution, which is required to certify to the sheriff making the levy the balance due to the defendant. The levy does not require the sheriff to take physical possession of any property, nor does it require any transfer of title. The effect is prescribed: 'Any such person so served with a certified copy of a warrant of attachment is forbidden to make or suffer, any transfer or other disposition of, or interfere with, any such property or interest therein so levied upon, * * * or sell, assign or transfer any right so levied upon, to any person, or persons, other than the sheriff serving the said warrant until ninety days from the date of such service, except upon direction of the sheriff or pursuant to an order of the court.' The account attached must, on the sheriff's demand, be paid over to him within ninety days, unless, as here, the time has been extended by order of court, and the sheriff is authorized to institute an action within that time to recover amounts withheld.
These creditors prosecuted their actions to judgments which could be satisfied only from attached property and by issuance of executions. An attachment merges in an execution when issued, but it is not annulled until the judgment is paid and remains in force to keep alive the lien on the property. Castriotis v. Guaranty Trust Co., 1920, 229 N.Y. 74, 79, 127 N.E. 900, 902.
Execution, if issued, would require a transfer of credit and of funds, but this step has not been taken and, it is admitted, cannot be taken in these cases without a federal license. While requirement of a federal license creates something of a contingency as to satisfaction of the judgments, as matter of New York law this does not deprive the judgment of its validity or the attachment of its lien. Commission for Polish Relief v. Banca Nationala a Rummaniei, 1942, 288 N.Y. 332, 338, 43 N.E.2d 345, 347.
Although the provisional remedy of attachment, as used in this case, has served to provide the basis of jurisdiction and has created a lien to secure satisfaction of the judgment, it is clear that it has neither attempted nor accomplished any transfer of possession, for these attachments, have been maintained for over nine years, and the accounts are still where they were before the attachments were levied. That there has been no transfer of title to the funds by the proceedings to date also is clear. If the judgment debtors chose to satisfy the judgments by other means, or to substitute an undertaking for the property attached, they could do so, and the accounts would be freed of the lien.
Under state law, the position of these judgment creditors is that they have judgments, secured by attachments on balances owned by German aliens, good as against the debtors, but subject to federal licensing before they can be satisfied by transfer of title or possession. The Custodian claims, in a collateral attack, that federal courts should pronounce them wholly void and of no effect.
II. Effect of Federal Foreign Funds Control on Attachment.
The Government, in the present action, relies heavily on General Ruling No. 12 under Executive Order No. 8389, issued April 21, 1942, some three to five months after these attachments were levied, and almost two years after issuance of the Executive Order which it purports to interpret. Then, for the first time, an attachment levy was specifically designated as a prohibited 'transfer.' The Government asks that it be construed to prohibit such attachments as here made and be applied retroactively to these attachments made before its promulgation. Whether an administrative agency could thus lump all attachments as prohibited 'transfers,' without reference to the nature of the rights acquired or steps taken under the various state laws providing for attachments, presents a question which we need not decide here. Some attachments may well be transfers, and thus prohibited. We deal here only with an attachment under New York law relating specifically to bank accounts.
This General Ruling, as thus interpreted to forbid these attachments, would be not only retroactive but inconsistent and irreconcilable with the contentions made one day after its issuance by both the Treasury and the Department of Justice to the New York Court of Appeals. These Departments filed a brief amicus curiae, dated April 22, 1942, in the New York Court of Appeals in Commission for Polish Relief v. Banca Nationala a Rumaniei, supra. The case involved an attachment, identical in state law character with those here, of bank balances in New York of the National Bank of Rumania, which had been frozen by Executive Order prior to levy. The Government's brief was subscribed by the General Counsel of the Treasury and an Assistant Attorney General, both members of the New York bar, presumably familiar with the peculiarities of the New York law of attachment of bank accounts. It specifically called attention to General Ruling No. 12, and, referring to the claim of incompatibility between the attachment and the federal freezing program, it declared: 'This is the first occasion in which a court of last resort in this country has been called upon to meet this issue * * *.' It went on to advise the Court of Appeals definitely and comprehensively as to the rights of New York courts to proceed on the basis of the attachment there involved. In view of the Custodian's present contentions, it merits extensive consideration.
The New York courts were advised of five purposes of the Federal Government's program: '1. Protecting property of persons in occupied countries'; '2. Preventing the Axis, now our enemy, from acquiring any benefit from these blocked assets'; '3. Facilitating the use of blocked assets in the United Nations war effort and protecting American banks and business institutions'; '4. Protecting American creditors'; '5. Foreign relations, including post-war negotiations and settlements.'
To accomplish these purposes in relation to over seven billion dollars of blocked foreign assets, it was said that '* * * the Treasury has had to deal with the problem of litigation, particularly attachment actions, as affecting blocked assets,' and the position of the Treasury was represented as follows:
'* * * the Treasury did not want to interfere with the orderly consideration of cases by the courts, including attachment actions, and at the same time it was essential to the Government's program that the results of court proceedings be subject to the same policy considerations from the point of view of freezing control as those arising or recognized through voluntary action of the parties.
'Indeed the Treasury regards the courts as the appropriate place to decide disputed claims and suggested to parties that they adjudicate such claims before applying for a license to permit the transfer of funds. The judgment was then regarded by the Treasury as the equivalent of a voluntary payment order without the creation or transfer of any vested interest, and a license was issued or denied on the same principles of policy as those governing voluntary transfers of blocked assets.
'The Treasury Department did not feel that it could finally pass on an application for a license to transfer blocked assets where the facts were disputed or liability denied. The Treasury felt that it was not practical to pass on the freezing control questions involved in such applications until there was at least a determination of the facts by a court of law * * *.'
Notwithstanding this assertion of complete discretion to grant or withhold approval of ultimate transfers, the Government advised the Court of Appeals that, 'So far as foreign funds control is concerned there can be an attachable interest under New York law with respect to the blocked assets. * * *' In language applicable to the case before us now, it said: 'The National Bank of Rumania has property within the jurisdiction. It has not been divested of all its property rights. In fact, its interests today in the blocked assets are perhaps by far the most valuable of all the interests in such assets. This property has not been confiscated by the Government. The National Bank of Rumania is prohibited from exercising powers and privileges which prior to the Executive Order it could exercise. * * * (T)he right of the owner of a blocked account to apply for a license to make payment out of such an account is a most substantial one, and that lawful payment can be made if a license is granted.'
'An attachment action against a national's blocked account is an attempt to obtain an unlicensed assignment of the national's interest in the blocked account-nothing more and nothing less.
'In this sense, the attachment action might be regarded as a levy upon the nationals contingent power (i.e. contingent upon Treasury authorization) to transfer all his interest in the blocked account to A; any judgment in the attachment action resulting in giving A a contingent interest in the account equivalent to what he would have obtained by voluntary assignment.
'The value of such an interest is of course problematical. Whether it is worthless or worth full value will depend upon whether the transfer sought is in accordance with the Government's policies in administering freezing control.
'Under this analysis of what the nature of any attachment action against a blocked account must be, in the light of the purposes of freezing control, it is suggested that an attachment action of this nature might well be allowed in the New York courts.
'The Federal Government is anxious to keep to a minimum interference with the normal rights of litigants and the jurisdiction of courts to hear and determine cases, consistent with the most effective prosecution by the Government of total war. Applied to the instant case, this means that the Federal Government must have its hands unfettered in using freezing control, recognizing that it is desirable that private litigants be able to attach some interest with respect to blocked assets in order to clarify their rights and liabilities.
'This has been suggested in this Brief. The Government believes that the interests of private litigants in state courts can be served without interference with the freezing control program. However, the interest of the Government is paramount to the rights of private litigations in this field and should this Court be of the view that under the New York law there cannot be a valid attachment of the limited interests herein suggested, then the Government must reluctantly take the position that in the absence of further authorization under the freezing control, there can be no attachable interests under New York law with respect to blocked assets.'
As the Government pointed out in the Polish Relief case, the Custodian is charged, among other things, with preserving and distributing blocked assets for the benefit of American creditors. Few claims are not subject to some question, and the Treasury does not pay questionable claims. For those claims to be settled so that they can properly be paid out of blocked assets they must be adjudicated valid by some court of law. Because the debtor rarely is amenable to personal service, any action must be in the nature of a quasi-in-rem action preceded by an attachment of property belonging to the debtor within the jurisdiction of the court. If, as the Custodian now contends, the freezing program puts all assets of an alien debtor beyond the reach of an attachment, it is not difficult to see that there can be no adjudications of the validity of American claims and consequently the claims, not being settled, would not be satisfied by the Treasury. The logical end of that course would be complete frustration of a large part of the freezing program. We cannot believe that the President intended the program to reach such a self-generated stalemate.
The New York Court of Appeals took the position urged by the Federal Government. It held that the interest of the debtor, although subject to the licensing contingency, was sufficient as matter of state law to render the levy valid and sufficient as a basis of jurisdiction to decide any issues between the attaching creditor and the foreign debtor. At the same time, it acknowledged that any transfer of the attached funds to satisfy the judgment could only be had if and when the proper license had been secured. Commission for Polish Relief v. Banca Nationala a Rumaniei, supra.
What the New Yok courts have done here is not distinguishable from what the Government urged in the Polish Relief case. Indeed, in that case, the Secretary of the Treasury had expressly denied the application of the petitioner for a license for his attachment. In spite of that, however, the Government urged that the attachment was authorized by settled administrative practice: 'From the very inception of freezing control, litigants, prior to commencing attachment actions against funds belonging to blocked nationals, have requested the Secretary of the Treasury to license a transfer to the sheriff by attachment. In all those cases, running into the hundreds, the Treasury Department has taken a consistent position. The Treasury Department has authorized the bringing of an attachment action. However, the Treasury Department has not licensed a transfer of the blocked funds to the sheriff prior to judgment.'
The foregoing is confirmed in this case by a stipulation that consistent administrative practice treated attachments such as we have here as permissible and valid at the time they were levied.
The Custodian now asks the federal courts to declare the state court attachments nullities. His request here is not merely that he is entitled to take and administer the fund, but that the attachments are not effective as against the right, title, and interest of the German banks. His request is irreconcilable with the admitted administrative practice and the position urged upon the New York courts in the Polish Relief case. He predicates that reversal of position, and so far has been sustained in it, upon the decision of this Court in Propper v. Clark, supra, to which we accordingly turn.
The essence of the Custodian's argument that Propper v. Clark requires invalidation of these attachments, as stated in his brief, is that: '* * * (I)t is little short of absurd to suggest that, while creditors of an enemy national are precluded from reaching his blocked property in the absence of a license where they proceed by the provisional remedy of receivership, the opposite result will be permitted where they follow the provisional remedy of attachment.'
The answer to this suggested absurdity is that a distinction in New York law, all important here, has eluded the Custodian. The receiver in Propper was not a receiver appointed as a provisional remedy but was a special statutory receiver which state law purported to vest with both title and right to possession, which, in case of blocked assets of a foreign corporate debtor, would obviously defeat the scheme of federal controls. As our opinion notes, 337 U.S. at page 475, 69 S.Ct. at page 1336, 93 L.Ed. 1480, Propper's claim, adverse to that of the Custodian, was initiated by a temporary receiver, later made permanent, appointed by a New York state court pursuant to § 977-b of the New York Civil Practice Act, which is entitled, 'Receivers to liquidate local assets of foreign corporations.' That is a special proceeding added to New York practice by the 1936 Legislature, and provides for appointment of a liquidating receiver of assets within the State owned by a foreign corporation which has been dissolved, liquidated, or nationalized, or which, voluntarily or otherwise, has ceased to do business. Upon application by a creditor of such a corporation, the court appoints a temporary receiver. Title to all such assets vests in him upon appointment, and the statute requires and empowers him to 'reduce to his possession any and all assets, credits, choses in action and property' found in the State. If it is established on trial that the corporation has been dissolved or nationalized or that its charter has been annulled or that it has ceased, for any reason, to do business, the receivership is made permanent and notice is given to all creditors to prove their claims. Those allowed, the receiver pays in accordance with statutory priorities. Any surplus is paid to stockholders of the corporation or, in the discretion of the court, to a receiver or liquidator, if any, appointed in the domicile of the corporation or elsewhere.
This special proceeding, which has nothing but name in common with the traditional provisional remedy of receivership, was introduced to protect resident creditors and shareholders against confiscatory decrees by foreign nations. As one court has said:
'This section became effective on the 8th day of June, 1936, and marks a distinct change in the policy of this State with respect to the disposition of property situated here but which belongs to a foreign corporation that has ceased to do business for any reason, or has been dissolved, liquidated, or nationalized.
'The purpose of this statute, clearly, is to administer the distribution of such assets in this State, irrespective of the scheme of distribution promulgated in any other State, inclusive of the domicile of the foreign corporation. * * *' Oliner v. American-Oriental Banking Corp., 1937, 252 App.Div. 212, 297 N.Y.S. 432, 433, affirmed 1938, 277 N.Y. 588, 13 N.E.2d 783. See also Moscow Fire Ins. Co. v. Bank of New York & Trust Co., 1937, 161 Misc. 903, 924, 294 N.Y.S. 648, 676.
Such was the position of the receiver whose claims we rejected in Propper v. Clark. The courts of New York had themselves recognized that the Propper receivership conflicted in principle with federal funds control and had pointed out that in practice it might well defeat the federal policy. It was said, 'The principle is well settled that war suspends the right of nonresident alien enemies to prosecute actions in our courts * * * and it cannot be denied that the plaintiff (Propper), although himself neither an enemy nor an alien nor a nonresident, is seeking to enforce a cause of action which, at least until his appointment, existed, if at all, in favor of a non-resident alien which is also an enemy as the term 'enemy' is defined in the Trading with the Enemy Act * * *. His right to recover must rest upon the rights of such nonresident alien enemy, and while Civil Practice Act, sec. 977-b purports to vest a receiver appointed thereunder with title to claims existing in favor of the foreign corporation it also is possible that under that section some proceeds of a recovery herein ultimately may benefit non-resident alien enemies. * * *' Propper v. Buck, 1942, 178 Misc. 76, 78, 33 N.Y.S.2d 11, 13.
But, as the Government before that decision so unequivocally urged upon the New York Court of Appeals, attachment proceedings as pursued in these cases have no such consequences. Nothing in these state court proceedings have purported to frustrate the purposes of the federal freezing program. On the contrary, the effect of the State's action, like that of the federal, was to freeze these funds, to prevent their withdrawal or transfer to use of the German nationals. There is no suggestion that these attachment proceedings could in any manner benefit the enemy. The sole beneficiaries are American citizens whose liens are not derived from the enemy but are adverse to any enemy interests. And, if no federal freeze orders were in existence, these state proceedings would tie up enemy property and reduce the amounts available for enemy disposition. We agree with the Government's assurance to the Court of Appeals in the Polish Relief case that these proceedings, in view of the fact that they do not purport to control the Custodian in the exercise of the federal licensing power, or in the power to vest the res if he sees fit to do so for administration, are not inconsistent with the freezing program and we think they were not invalidated or considered in Propper v. Clark, supra. The latter decision is not authority for the judgment asked and obtained by the Custodian here.
IV. The Vesting Order.
The Custodian in this case has only sought to vest in himself the 'right, title, and interest' of the German banks. As we understand it, he acknowledges that if the interests acquired by the attachments are valid as against the German banks he is not, under the Vesting Orders involved, as he has chosen to phrase them, entitled to the attached funds, but he takes the position that no valid rights against the German debtors were acquired by the attachments because prohibited by the freezing program. He has, in short, put himself in the shoes of the German banks. As against the German debtors, the attachments and the judgments they secure are valid under New York law, and cannot be cancelled or annulled under a Vesting Order by which the Custodian takes over only the right, title, and interest of those debtors in the accounts. But, of course, as against the Custodian, exercising the paramount power of the United States, they do not control or limit the federal policy of dealing with alien property and do not prevent a res vesting, as sustained in the companion cases, if the Custodian sees fit to take over the entire fund for administration under the Act. In such case, all federal questions as to recognition by the Custodian of the state law lien, or priority of payment, are reserved for decision if and when presented in accordance with the Act.
This result, as we have indicated, in no way impairs federal control over alien property, since the petitioners admit that they cannot secure payment from the attached frozen funds without a license from the Custodian. The case is, therefore, more nearly like Lyon v. Singer, 339 U.S. 841, 842, 70 S.Ct. 903, 904, 94 L.Ed. 1323, where this Court said: 'We accept the New York court's determination that under New York law these claims arose from transactions in New York and were entitled to a preference. Since the New York court conditioned enforcement of the claims upon licensing by the Alien Property Custodian, federal control over alien property remains undiminished.'
The decision of the court below is reversed.
Reversed.
Mr. Justice CLARK took no part in the consideration or decision of these cases.

## Notes

* ↑ As provided for in N.Y. Civil Practice Act, § 922.
* ↑ 3 CFR, 1943 Cum.Supp. 948, 6 Fed.Reg., 2897, 12 U.S.C.A. § 95a note.
* ↑ 3 CFR, 1943 Cum.Supp. 645, 5 Fed.Reg. 1400, 12 U.S.C.A. § 95a note.
* ↑ 40 Stat. 411, 415, as amended by Joint Resolution of May 7, 1940, 54 Stat. 179, and First War Powers Act of 1941, § 301, 55 Stat. 839, 50 U.S.C.A.Appendix, § 5(b).
* ↑ Executive Order No. 8389, as amended, provides:
* ↑ The Attorney General has since succeeded to the functions and powers of the Alien Property Custodian, but, for convenience, the Respondent interest will be referred to throughout as the Custodian.
* ↑ Clark v. Chase Nat. Bank of City of N.Y., D.C., 82 F.Supp. 740.
* ↑ McGrath v. Chase Nat. Bank of City of N.Y., 2 Cir., 182 F.2d 349.
* ↑ 340 U.S. 882, 71 S.Ct. 195.
* ↑ N.Y.Civ.Pract.Act, §§ 974-977.
* ↑ Id. §§ 902-973.
* ↑ Id. § 917(2).
* ↑ Id. § 918.
* ↑ Id. § 917(2).
* ↑ Id. § 922(1).
* ↑ Id. § 520.
* ↑ Id. §§ 952, 953.
* ↑ General Ruling No. 12(5)(a) under Executive Order No. 8389, 31 CFR, 1943 Cum.Supp., 8849, April 21, 1942, defined a prohibited 'transfer' as '* * * any actual or purported act or transaction * * * the purpose, intent, or effect of which is to create, surrender, release, transfer, or alter, directly or indirectly, any right, remedy, power, privilege, or interest with respect to any property and without limitation upon the foregoing shall include * * * the creation or transfer of any lien; the issuance, docketing, filing, or the levy of or under any judgment, decree, attachment, execution, or other judicial or administrative process or order, or the service of any garnishment * * *.'
* ↑ Brief of the United States as amicus curiae, p. 2, Commission for Polish Relief v. Banca Nationala a Rumaniei, 1942, 288 N.Y. 332, 43 N.E.2d 345.
* ↑ Id. at pp. 5, 7, 9, 11, 13.
* ↑ Id. at p. 14.
* ↑ Id. at pp. 14-15.
* ↑ Id. at p. 42.
* ↑ Id. at p. 50.
* ↑ Id. at p. 52.
* ↑ Id. at p. 53.
* ↑ Id. at p. 39.
* ↑ The stipulation of facts states:
* ↑ Brief for Respondent, pp. 16-17.
* ↑ L.1936, c. 917.
* ↑ N.Y.Civ.Pract.Act § 977-b(1).
* ↑ Id. § 977-b(4).
* ↑ Id. § 977-b(19).
* ↑ Id. § 977-b(4).
* ↑ Id. § 977-b(10).
* ↑ Id. § 977-b(11).
* ↑ Id. § 977-b(16).
* ↑ Ibid.
* ↑ Id. §§ 974-977. A receiver appointed as a provisional remedy is not an agent or representative of either party, but holds the property during the litigation pending final judgment. Weeks v. Weeks, 1887, 106 N.Y. 626, 631, 13 N.E. 96, 98; People ex rel. Attorney General v. Security Life Ins. & Annuity Co., 1879, 79 N.Y. 267, 270. 'The receiver acquires no title, but only the right of possession as the officer of the court. The title remains in those in whom it was vested when the appointment was made.' Stokes v. Hoffman House, 1901, 167 N.Y. 554, 559-560, 60 N.E. 667, 669, 53 L.R.A. 870, quoting Keeney v. Home Ins. Co., 1877, 71 N.Y. 396, 401, 27 Am.St.Rep. 60, 63. See also Carmody's Manual of New York Civil Practice (Carr, Finn, Saxe, 1946 Ed.) § 609.
* ↑ Brief for Respondent, p. 27.
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