Opinion
Argued April 20, 1948
Decided July 16, 1948
Appeal from the Supreme Court, Appellate Division, First Department, BENVENGA, J.
Adolf A. Berle, Jr., Robert H. Seabolt and Thorold J. Deyrup for appellant.
Albert R. Connelly, Carlyle E. Maw, Vernes Grafstrom and Henry W. Trimble, Jr., for respondents.
At least as regards the securities that were delivered into the custody of the defendant and kept in safekeeping accounts maintained by it in New York, we agree with the conclusion of a majority of the Appellate Division that the plaintiffs have made a prima facie showing of a cause of action in conversion which accrued in this State and is sufficient to withstand a motion to vacate the warrant of attachment. Since the motion was not one to modify, but only to vacate the warrant, we deem it unnecessary to determine whether the plaintiffs have made such a showing with respect to all the securities entrusted to the defendant's custody, particularly those physically situated in Haiti at the time of the promulgation of the decrees of the Republic of Haiti on which the defendant relies. It is enough that as to a major portion of their claim we cannot say as matter of law on this record that the plaintiffs must ultimately be defeated (see American Reserve Ins. Co. v. China Ins. Co., 297 N.Y. 322, 325).
At Special Term the defendant claimed immunity from suit and from attachment of its property as a sovereign instrumentality of the Republic of Haiti, but that claim is not urged on this appeal.
The order should be affirmed, with costs, and the question certified answered in the negative.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER, DYE and FULD, JJ., concur.
Order affirmed, etc.