Legal Opinion

Rothbarth v. Herzfeld

Appellate Division of the Supreme Court of the State of New York

Decided November 9, 1917PublishedCited by 27 opinions

Appeal by the defendants, Felix Herzfeld and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of July, 1917, denying their motion for judgment dismissing the complaint and for other relief.

1Opinion of the Court

Shearn, J.:

The law is well settled that an alien enemy, resident in the enemy’s country, cannot during the war prosecute an action in our courts. (Jackson v. Decker, 11 Johns. 418; Bell v. Chapman, 10 id. 183; Sanderson v. Morgan, 39 N. Y. 231; Kershaw v. Kelsey, 100 Mass. 561.) The situation disclosed in the case at bar, however, is peculiar. The action, which is one in equity for an accounting of moneys embezzled by plaintiffs’ agent and paid over by him to the defendants for his individual stock speculations, was commended in 1910. The plaintiffs are copartners and sue as such. Two of the…

2Cases cited3 opinions

  1. Kershaw v. KelseyMassachusetts Supreme Judicial Court · 1868
  2. Sanderson v. . MorganNew York Court of Appeals · 1868
  3. Jackson ex dem. Johnston v. DeckerNew York Supreme Court · 1814

3Cited by27 opinions

  1. Ex Parte ColonnaSupreme Court of the United States · 1942
  2. PETERS v. McKAYOregon Supreme Court · 1951
  3. Drewry v. OnassisAppellate Division of the Supreme Court of the State of New York · 1943
  4. Arndt-Ober v. Metropolitan Opera Co.Appellate Division of the Supreme Court of the State of New York · 1918
  5. Mittelstadt v. KellyMichigan Supreme Court · 1918

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