Opinion
Argued March 15, 1934
Decided December 31, 1934
Appeal from the Supreme Court, Appellate Division, First Department.
John C. Higgins, Philip L. Miller and Hyman Zettler for appellant.
John A. Garver, Joseph M. Proskauer, Carl A. Mead, Philip A. Carroll, J. Alvin Van Bergh and Frank A.F. Severance for National City Bank of New York, amicus curiae. Martin Conboy, David Asch and William J. Butler for respondent.
December 27, 1917, the day upon which the Soviet government issued decrees against all banks in Russia, plaintiff had a deposit payable on demand in defendant's branch at Moscow. The contract between this debtor and creditor was there to be performed. Confiscation of defendant's property did not become immediately effective but liquidation at once began. There is no evidence that deposits in this bank were confiscated prior to June 2, 1920, and no evidence that between these dates those in control of political affairs in Russia would have refused defendant the right to comply with a demand by plaintiff if one had been made. Defendant concedes that on June 2, 1920, its ability to honor a demand ceased. Its books show that during that interval it paid more than 6,000,000 rubles to its depositors of which more than a million and a half was paid to clients abroad. The only demand ever made by plaintiff is the constructive one growing out of the institution of this action on December 15, 1923. If plaintiff refrained from making demand in the hope that the dollar value of the ruble would increase, it was disappointed. Neither on June 2, 1920, the date of the constructive breach, nor on December 15, 1923, the date of the beginning of this action, did its deposit amount to more than nominal value. ( Dougherty v. Equitable Life Assur. Society, decided herewith, 266 N.Y. 71.)
The judgment of the Appellate Division and that of the Trial Term should, therefore, be reversed and the complaint dismissed, with costs in all courts.
POUND, Ch. J., CRANE, LEHMAN, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Judgment accordingly.