FREES et al. v. JOHN SHIELDS CONST. CO.

(Circuit Court, S. D. New York. May 10, 1906.)

COURTS CONCURRENT JURISDICTION-ACTION BY FEDERAL PECEIVER IN STATE COURT-PRIORITY OF JURISDICTION.

Where a federal receiver has commenced an action on a claim in a state court, which has the power to entertain equitable defenses in actions at law, the federal court will not direct him to suspend such action to permit the defendant to prosecute a suit in equity therein to establish the right to a set-off, merely because the courts of the two jurisdictions held different views on the right of set-off under the facts, but will stay the suit before it until the state court, which first acquired jurisdiction of the parties and subject-matter, has disposed of the action before it.

[Ed. Note.-Federal courts enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank of Providence, 16 C. C. A. 90; Central Trust Co. of New York v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]

On Petition by the Hamilton Bank for Instructions to Receiver.
Edmund L. Mooney, for the motion.
Arthur H. Van Brunt, opposed.

TOWNSEND, Circuit Judge. The defendant is a New Jersey corporation and is insolvent, and Calvin E. Broadhead, the New Jersey receiver, was appointed ancillary receiver by this court to enforce in this district a claim of the receiver against the petitioner, the Hamilton Bank, for a sum on deposit in said bank. The bank is a creditor of said company on a note indorsed by said company for the same amount as said deposit. Before the maturity of said note, the receiver brought suit in the Supreme Court of the state of New York to enforce his claim against the petitioner, which suit is now pending. The petitioner claims the right to set off against said sum on deposit its claim by virtue of said note, and has brought a suit in this court to establish said right. The petitioner, however, asserts that this right is not enforceable in the state court, because the note did not mature prior to the appointment of the receiver (Fera v. Wickham, 135 N. Y. 223, 31 N. E. 1028, 17 L. R. A. 456), but is enforceable in this court under the decisions of the federal courts (Frank v. Mercantile Nat. Bank, 182 N. Y. 264, 74 N. E. 841; Schuler v. Israel, 120 U. S. 506, 7 Sup. Ct. 648, 30 L. Ed. 707; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 14 Sup. Ct. 710, 38 L. Ed. 565). The petitioner, therefore, prays for an order directing the receiver to suspend the proceedings in the state court until after its rights have been determined in the suit against him in this court. It is alleged that the state court "has not jurisdiction to entertain and adjudge upon the matters" alleged as a set-off, and that full and adequate relief can only be had in this court as a court of equity. This contention does not seem to be well founded, in view of the allegations in the affidavits and of the equitable powers of the courts of the state of New York. Apparently, the sole ground on which this claim is based is the one stated above as to the difference in view between the two jurisdictions. Under the New York statutes the Supreme Court has general jurisdiction to entertain

all defenses, both legal and equitable, in a civil action such as the receiver has brought. He was appointed by this court to collect the assets of the estate. Such appointment imposes no limitation as to the tribunal to which he shall resort in the prosecution of his duties as receiver. It must be assumed that the state court, having equity powers, will afford to the parties any relief to which they may be entitled, in accordance with the principles and practice of equity.

There is, therefore, but one issue to be tried in the two proceedings, and, under the settled rule in the case of courts having concurrent jurisdiction, the later proceeding should be stayed until the court which first acquired jurisdiction of the parties and the subject-matter has disposed of the action before it. Zimmerman v. So Relle, 80 Fed. 417, 25 C. C. A. 518; Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Mining Co., 109 Fed. 504, 47 C. C. A. 200.

The petition is denied.

MEMORANDUM DECISIONS.

BUEHNE STEEL WOOL CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. March 16, 1906). No. 191 (3924). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 140 Fed. 772. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. Affirmed in open court, on consent.

In re DRESSER et al. (Circuit Court of Appeals, Second Circuit. May 25, 1906.) No. 281. Petition to Review Order of the District Court of the United States for the Southern District of New York. J. A. Hodge, for petitioner. Before WALLACE, TOWNSEND, and COXE, Circuit Judges. PER CURIAM. Order (144 Fed. 318) affirmed in open court.

ECKSTEIN v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. March 6, 1906.) No. 150 (3597). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 140 Fed. 94. Comstock & Washburn (J. Stuart Tompkins, of counsel), for appellant. D. Frank Lloyd, Asst. U. S. Atty. Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. Decision affirmed; approving decision of the Circuit Court, and of the Board of General Appraisers.

FRANCIS H. LEGGETT & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. February 20, 1906.) No. 119 (3562). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 138 Fed. 970.

PER CURIAM. Dismissed on consent, without prejudice.

GOAT & SHEEPSKIN IMPORT CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. February 26, 1906.) No. 133 (3641). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 141 Fed. 493. Note 26 U. S. Sup. Ct. 767, 50 L. Ed.-. Hatch, Keener & Clute (J. Stuart Tompkins, of counsel), for appellants. D. Frank Lloyd, Asst. U. S. Atty. Before LACOMBE and COXE, Circuit Judges.

PER CURIAM. Affirmed on the opinion of the Circuit Court.

HERMANN BOKER & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. February 23, 1906.) No. 145 (3769). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 140 Fed. 115. Walden & Webster (Howard T Walden, of counsel), for appellants. Henry A. Wise, Asst. U. S. Atty. Before LACOMBE and COXE, Circuit Judges.

PER CURIAM. Affirmed in open court.

HIRSCH et al. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. April 9, 1906.) No. 211 (3725). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 141 Fed 380. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. Affirmed on consent in open court.

The JOHN FLEMING. (Circuit Court of Appeals, Second Circuit. May 22, 1906.) No. 256. Appeal from the District Court of the United States for the Southern District of New York. Albert A. Wray, for appellant. La Roy S. Gove, for appellee. Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. Decree of District Court (136 Fed. 917). Affirmed with interest and costs.

The KNICKERBOCKER. (Circuit Court of Appeals. Second Circuit May 24, 1906.) No. 265. Appeal from the District Court of the United States for the Southern District of New York. Peter S. Carter, for appellant. Amos Van Etten, for appellee. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. Decree affirmed with costs on opinion of District Judge (138 Fed. 148).

LAKE STEAM SHIPPING Co. v. BACON. (Circuit Court of Appeals, Second Circuit. May 24, 1906.) No. 261. Appeal from the District Court of the United States for the Southern District of New York. J. P. Kirlin, for libellant. C. S. Haight, for respondent. Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. Decree affirmed with interest but without costs, as we agree with the opinion of the Commissioner, and with the opinion of the Court below (137 Fed. 961).

LAWRENCE JOHNSON & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. February 20, 1906. Rehearing Denied March 10,

1906.) No. 146 (3620). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 140 Fed. 116. Note (C. C.) 124 Fed. 1000. Walden & Webster (Henry J. Webster, of counsel), for appellants. D. Frank Lloyd, Asst. U. S. Atty. Before LACOMBE and COXE, Circuit Judges.

PER CURIAM. Affirmed on the opinion of the Circuit Court,

UNITED STATES v. BUEHNE STEEL WOOL CO. (two cases). (Circuit Court of Appeals, Second Circuit. March 8, 1906.) No. 192 (3915, 3924). Appeals from Circuit Court of the United States for the Southern District of New York. For decision below, see 140 Fed. 772.

PER CURIAM. Dismissed upon consent, in open court.

UNITED STATES v. SAMUEL SCHIFF & CO. (Circuit Court of Appeals, Second Circuit, March 6, 1906.) No. 151 (3631). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 140 Fed. 63. Charles Duane Baker, Asst. U. S. Atty. Comstock & Washburn (Albert H. Washburn, of counsel), for appellees. Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. Decision of Circuit Court affirmed.

WARD et al. v. WARD et al. (two cases). (Circuit Court of Appeals, Second Circuit. May 22, 1906.) Nos. 61, 62. Appeal from the Circuit Court of the United States for the Southern District of New York. Austen G. Fox, for appellants. Wm. G. Wilson, for appellees. Before WALLACE and TOWNSEND, Circuit Judges. HOLT, District Judge.

PER CURIAM. A majority of the court, after a careful examination of the record, have reached the conclusion that the decrees below ought not to be disturbed, and concur in the views expressed in the opinion of the court below. The decrees are accordingly affirmed with costs. For opinion below, see 131 Fed. 946.

W. W. THOMAS & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. February 26, 1906). No. 143 (3897). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 140 Fed. 93. Before LACOMBE and COXE, Circuit Judges.

PER CURIAM. Affirmed in open court, upon consent.

CARBONDALE MACH. CO. v. WILLIAM H. BURGESS & CO. (Circuit Court, S. D. New York. June 19, 1906.) Taft & Sherman, for plaintiff. Rose & Putzel, for defendant.

LACOMBE, Circuit Judge. There is no appeal now pending and this court seems to be without jurisdiction to act further. The temporary stay is vacated, and motion denied.

END OF CASES IN VOL. 145.