202 F2d 483 Malman v. United States

202 F.2d 483

MALMAN,

v.

UNITED STATES.

No. 138, Docket 22431.

United States Court of Appeals Second Circuit.

Argued Jan. 6, 1953.

Decided Feb. 16, 1953.

Rehearing Denied May 29, 1953.

Leon Malman, New York City, plaintiff-appellant, pro se.

Myles J. Lane, U.S. Atty. for Southern District of New York, New York City (Joseph N. Friedman, New York City, of counsel), for United States.

Before SWAN, Chief Judge and CLARK and FRANK, Circuit Judge.

FRANK, Circuit Judge.

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1

1. Jurisdiction.

2

In support of its position that the district court had no jurisdiction, defendant advances several arguments. We think that these arguments lack merit, because plaintiff, in effect, sues as Trimore's assignee by 'operation of law,'2 and because the court clearly has jurisdiction of a suit by Trimore under its contract with the United States.

3

We think the earlier total assignment by Trimore to Concord Factors raises no jurisdictional questions. In this connection, the government cites Sherwood v. United States, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058. A majority of this court think that decision never had any application to a case like this.3

4

2. The merits.

5

Trimore retained plaintiff on December 30, 1949, to prosecute its claim that the United States had erroneously determined that liquidated damages were deductible from the amount previously earned by Trimore under the contract. Accordingly, whatever right Trimore had to the $4,078.14, thus deducted, derived from what it had earned before plaintiff was retained or had rendered services to Trimore. However, also before that time, Trimore owed the United States $13,242.17 for taxes. Now suppose the same facts except that the United States were an ordinary person to whom Trimore owed the $13,242.17 on account of a non-tax obligation. Then, because of the right to set-off, the United States would owe Trimore nothing net under its contract until the $13,242.17 was paid; wherefore, there would be nothing to which plaintiff's lien could attach. Since the United States as creditor has at least as much right to a set-off as an ordinary person,4 it follows that we must affirm on the merits the judgment dismissing the complaint.5

6

Affirmed.

1 This section reads as follows:

'Attorney's lien in action, special or other proceeding

'From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing counterclaims, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.'

2 The Anti-Assignment statute, 31 U.S.C.A. § 203, does not apply to such an assignment. Wardman v. Leopold, 66 App.D.C. 111, 85 F.2d 277, 106 A.L.R. 1487.

3 The majority's view is that that decision dealt only with a person required to be made a party by the explicit terms of the state statute, N.Y.C.P.A. Sec. 795, there in issue, and that it did not touch the question of suits by an assignee where, by settled authority, the assignor or others are not indispensable parties. F.R.C.P. rules 17(a), 19(b), 28 U.S.C.; United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171; Rosenblum v. Dingfelder, 2 Cir., 111 F.2d 406; Fox v. McGrath, 2 Cir., 152 F.2d 616, certiorari denied 327 U.s. 806, 66 S.Ct. 966, 90 L.Ed. 1030; Empire Ordnance Corp. v. United States, Ct.Cl., 108 F.Supp. 622; 3 Moore's Federal Practice 1334-1351, 2177, 2178 (2d Ed. 1948), and 1951 Cum.Supp.

The writer of this opinion might have had some possible doubt about the inapplicability of Sherwood were it not for the enactment in 1944 (after the Sherwood decision) of 41 U.S.C.A. § 114(b). See United States v. Dry Dock Savings Institution, 2 Cir., 149 F.2d 917, 919; Pack v. United States, 9 Cir., 176 F.2d 770, 772; Moreno v. United States, 1 Cir., 120 F.2d 128, 130; Wallace v. United States, 2 Cir., 142 F.2d 240; Waite v. United States, 57 Ct.Cl. 546; Central National Bank v. United States, 84 F.Supp. 654, 655, 114 Ct.Cl. 390.

4 United States v. Munsey Trust Company, 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022; Cherry Cotton Mills v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835. See 28 U.S.C. §§ 1346(c) and 1503.

5 Our disposition of the case renders it unnecessary to decide whether, in the circumstances, were there no right of set-off, the lien for taxes would rank ahead of plaintiff's lien.