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8565 following this section, prohibiting persons within the United States from transferring or dealing in evidences of ownership of "property" in which foreign country designated in order had any interest, quoted phrase included stock. Heyden Chemical Corp. v. Clark, S.D.N.Y.1948, 85 F.Supp. 949. 14. Freezing of funds--Generally Ex.Ord. No. 8785, following this section, immobilized assets covered by its terms so that title to them might not shift from person to person except by license until government could determine whether those assets were needed for prosecution of threatened war or to compensate our citizens or ourselves for damages done by governments of the nationals affected. Propper v. Clark, U.S.N.Y.1949, 69 S.Ct. 1333, 337 U.S. 472, 93 L.Ed. 1480, rehearing denied 70 S.Ct. 33, 338 U.S. 841, 94 L.Ed. 514, rehearing denied 72 S.Ct. 289, 342 U.S. 907, 96 L.Ed. 679. Temporary receiver of New York assets of an Austrian society did not have such title as to defeat a later freezing order of the Executive prohibiting transfer of funds and a later seizure by Alien Property Custodian. Clark v. Propper, C.C.A.2 (N.Y.) 1948, 169 F.2d 324, certiorari granted 69 S.Ct. 405, 335 U.S. 902, 93 L.Ed. 436, affirmed 69 S.Ct. 1333, 337 U.S. 472, 93 L.Ed. 1480, rehearing denied 70 S.Ct. 33, 338 U.S. 841, 94 L.Ed. 514, rehearing denied 72 S.Ct. 289, 342 U.S. 907, 96 L.Ed. 679. The purpose of Ex.Ord. No. 6560, following this section, freezing certain foreign funds in United States was to prevent such funds from falling into hands of aggressor Axis powers and was not intended to do away with right of creditor of foreigner to attach such frozen funds. Commission for Polish Relief v. Banca Nationala a Rumaniei, N.Y.1942, 43 N.E.2d 345, 288 N.Y. 332. 15. ---- Attachment
Treasury ruling pursuant to Ex.Ord. No. 8389, set out as a note under this section, blocking debts owing to Japanese nationals, that unlicensed transfer of property in blocked accounts is null and void, and defining transfer to include attachment, deprived unlicensed attachment by Japanese national's creditors of preferential position as to debts owed by third party to Japanese national and vested under res vesting orders of alien property custodian, and hence creditors had no interest, right or title sufficient to maintain suit under the Trading With the Enemy Act, 50 App. §§ 5(b), 9(a) and 34(f, i), after dismissal by hearing examiner of claim against successor to alien property custodian. Orvis v. McGrath, C.A.2 (N.Y.) 1952, 198 F.2d 708, certiorari granted 73 S.Ct. 283, 343 U.S. 902, 97 L.Ed. 697, affirmed 73 S.Ct. 596, 345 U.S. 183, 97 L.Ed. 938. *85267 Issuance of attachment or levy on blocked property was not barred by the Trading With the Enemy Act, 50 App. § 1 et seq., or by executive order, but transfer of such property under such attachment could be made only upon license. McCloskey v. Bache, N.Y.Sup.1949, 88 N.Y.S.2d 196. Ex.Ord. No. 6560, set out following this section, freezing Rumanian funds in United States did not prevent valid levy under writ of attachment on Rumanian bank's deposits in New York banks, and under levy, court acquired dominion over rights and interests of Rumanian bank in deposits, which were an attachable res, where said executive order merely provided a regulatory plan and operated exclusively in personam on New York banks and had no other legal effect. Commission for Polish Relief v. Banca Nationala A Rumaniei (National Bank of Rumania), N.Y.A.D. 2 Dept.1941, 30 N.Y.S.2d 690, 262 A.D. 543, appeal granted 32 N.Y.S.2d 138, 263 A.D. 825, affirmed 43 N.E.2d 345, 288 N.Y. 332. 16. ---- Contingent obligations Ex.Ord. No. 8389, as amended by Order No. 8565, set out following this section, freezing foreign funds in United States did not transmute liabilities of New York banks to Rumanian bank carrying deposits in such New York banks into "contingent obligations" not subject to attachment in action against Rumanian bank. Commission for Polish Relief v. Banca Nationala a Rumaniei, N.Y.1942, 43 N.E.2d 345, 288 N.Y. 332.
17. ---- Countries affected Upon the invasion of Denmark and Norway, the President, acting under § 1 et seq. of Title 50 App., took steps to "freeze" the property in the United States of the nationals of the invaded countries by Ex.Ord. No. 8389 of April 10, 1940, note following this section; upon the subsequent invasion of the Netherlands and Belgium, the Executive Order was extended to apply to nationals of these two countries and from time to time has been made applicable to other states as the area of German invasion or domination was extended. Anderson v. N.V. Transandine Handelmaatschappij, N.Y.Sup.1941, 28 N.Y.S.2d 547, affirmed 31 N.Y.S.2d 194, 263 A.D. 705, appeal granted 32 N.Y.S.2d 1014, 263 A.D. 858, affirmed 43 N.E.2d 502, 289 N.Y. 9. 18. ---- Judicial process The prohibition of unlicensed transfer of property contained in Ex.Ord. No. 8389, as amended by Ex.Ord. No. 8785, set out as note under this section is universal and does not except transfers by judicial process. Clark v. Propper, C.C.A.2 (N.Y.) 1948, 169 F.2d 324, certiorari granted 69 S.Ct. 405, 335 U.S. 902, 93 L.Ed. 436, affirmed 69 S.Ct. 1333, 337 U.S. 472, 93 L.Ed. 1480, rehearing denied 70 S.Ct. 33, 338 U.S. 841, 94 L.Ed. 514, rehearing denied 72 S.Ct. 289, 342 U.S. 907, 96 L.Ed. 679. *85268 19. ---- Miscellaneous cases A French national's transfer, by book entries, of securities in possession of New York agency of international bank, to bank's head office in London, without United States Treasury license, was void under Ex.Ord. No. 8389, as amended, set out as note following this section, freezing foreign funds in United States, and receiver, appointed for the French national in supplementary proceedings brought by judgment creditor of French national, had title to and was entitled to possession of such securities on obtaining the necessary license. Patino v. Patino, N.Y.Sup.1945, 59 N.Y.S.2d 58, 186 Misc. 381. Ex.Ord. No. 8389, as amended by Order No. 8565 following
this section, freezing foreign funds in the United States deprived Rumanian bank of its power to transfer any interest in funds deposited in New York banks to the account of the Rumanian bank except through the medium of assignment subject to a releasing of the credit by the Secretary of the Treasury. Commission for Polish Relief v. Banca Nationala a Rumaniei, N.Y.1942, 43 N.E.2d 345, 288 N.Y. 332. Where moneys of which husband, an American citizen, was trustee for nonresident alien nationals was transferred by wife from joint account to wife's personal account, such funds should be deposited with register of court by wife, who was suing for divorce and division of joint property, to be repaid to husband upon his petition and due proof that such repayment would not contravene orders promulgated under President's emergency powers as to freezing property of alien nationals. Roubicek v. Roubicek, Ala.1945, 21 So.2d 244, 246 Ala. 442. 20. Gold coin or bullion--Generally This section authorizing the president to prohibit hoarding of gold bullion, and Ex.Ord. No. 6260, Aug. 28, 1933, set out as note under § this section of this title, issued thereunder, contemplated that "gold bullion" should include melted scrap gold. U.S. v. Levy, C.C.A.2 (N.Y.) 1943, 137 F.2d 778. There is nothing in the record to justify the conclusion that in this section it was not intended to include in the term "gold bullion" newly mined gold melted and cast into gold bars containing as much as 83 percent pure gold. Alaska Juneau Gold Mining Co. v. U.S., Ct.Cl.1941, 94 Ct.Cl. 15. *85269 21. ---- Method of acquisition Plaintiff was in no better position than any other holder of gold or gold bullion within the meaning of this section and the Treasury regulations merely because its gold bullion was obtained as the result of its mining operations rather than by purchase or by some other mode of acquisition. Alaska Juneau Gold Mining Co. v. U.S., Ct.Cl.1941, 94 Ct.Cl. 15. 22. ---- Payment in
Ex.Ord. No. 8389, set out in note under this section, regulating transactions in foreign exchange and foreign owned property interdicted solely payment and not the prosecution of an action, or the assignment of a claim, for such property. Leeds v. Guaranty Trust Co. of N.Y., N.Y.Sup.1946, 65 N.Y.S.2d 431, affirmed 72 N.Y.S.2d 409, 272 A.D. 909, appeal granted 74 N.Y.S.2d 404, 272 A.D. 1004, affirmed 80 N.E.2d 538, 297 N.Y. 1019. Notice of sale under trust deed that sale would be made for cash, payable in United States gold coin, was not invalid on ground that terms could not be met because possession of gold was illegal, where congressional resolution authorized discharge of obligation to pay gold coin by payment of any legal tender, since its effect was to strike provision for payment in gold coin. Security-First Nat. Bank of Los Angeles v. Cuesta, Cal.App. 2 Dist.1936, 59 P.2d 542, 15 Cal.App.2d 302. Under state statute authorizing party in justice court to deposit, in lieu of a required undertaking, an equal amount of money in United States gold coin, deposit of lawful currency would be sufficient in view of presidential executive orders, based on this section prohibiting and making impossible the use of gold coin for such purpose. Stewart v. Justice's Court of Lindsay Tp., Cal.App. 4 Dist.1935, 45 P.2d 424, 7 Cal.App.2d 61. 23. Instructions of Secretary Advice by officials of the Department of Justice that organization, which was a national of enemy country, should disband and turn over its activities to a new committee did not constitute "instructions" within Ex.Ord. No. 8389, set out as a note under this section, which conditions transfers of enemy national's property upon instructions from Secretary of the Treasury. Schumacher v. Brownell, C.A.3 (Pa.) 1954, 210 F.2d 14. *85270 24. Nationals Plaintiffs who had had firm and continuing intent to leave Hungary forever before date of order, but who were kept involuntarily in Hungary, and who had lost their home and civil and voting rights,
were not domiciled in, or subjects, citizens or residents of Hungary, within Ex.Ord. No. 8389 defining nationals, and thus were entitled to sue for property vested under International Claims Settlement Act, section 1631f(a) of Title 22. Roboz v. Kennedy, D.C.D.C.1963, 219 F.Supp. 892. Where corporations were found guilty of conspiracy to violate section 611 et seq. of Title 22, corporations were "nationals" within Ex.Ord. No. 8389, set out under this section, prohibiting certain transactions with designated foreign countries or nationals thereof unless authorized by license issued by Treasury Department, and consequently the purchase without such license of tax sale certificates issued in connection with delinquent real estate taxes assessed against property of corporations could vest no rights in purchaser. Dix v. Brownell, E.D.N.Y.1958, 159 F.Supp. 163, affirmed 269 F.2d 84. General partnership, which was organized and existing under the laws of France, and which maintained its office in Paris in portion of France occupied by Germany at time when Germany was at war with the United States, was properly determined by the alien property custodian as a "National of a designated enemy country" within meaning of Ex.Ords. No. 8389, § 5, and No. 9095 § 10. Stern v. Newton, N.Y.Sup.1943, 39 N.Y.S.2d 593, 180 Misc. 241. 25. Property within United States Proceeds of collection for account of, and due, customers of collection agency's Hamburg office were property within United States and subject to seizure under Trading With the Enemy Act, section 1 et seq. of Title 50 Appendix, where collection agency was subject to control of U.S. courts McGrath v. Agency of Chartered Bank of India, Australia & China, S.D.N.Y.1952, 104 F.Supp. 964, affirmed 201 F.2d 368. 26. Transfer of credit Ex.Ord. No. 8389, set out in note under this section prohibiting all financial transactions between any banking institution in United States and Japan, or any national thereof, unless licensed, prohibited transfers of credit. Carr v. Yokohama Specie Bank, Limited, of San Francisco, C.A.9 (Cal.) 1952, 200 F.2d 251.
*85271 Where proceeds of a check belonged to one who had deposited check for collection in a bank's Paris branch when defendant bank received proceeds, an attempted transfer by defendant of credit from proceeds to Paris bank was a "transfer of credit" within Ex.Ord. No. 8446, prohibiting such transfers notwithstanding that result of attempted transfer was merely to reduce Paris bank's indebtedness to defendant, and hence proceeds in defendant's hands were subject to attachment in proceedings against depositor. Philipp v. Chase Nat. Bank of City of New York, N.Y.Sup.1942, 34 N.Y.S.2d 465. 27. Transfers subject to license Executive Order No. 8389, set out as a note following this section, blocking all transfers of evidence of debt or interests in property of Japanese nationals, unless permitted by license from Secretary of Treasury, in conjunction with Treasury ruling to effect that such prohibition included creation of lien, prevented creditor of Japanese national from thereafter acquiring, by unlicensed attachment of funds in hands of third party to credit of Japanese national, an interest, right or title in the funds which would support a claim against the Alien Property Custodian, or his successor, for return of an interest in vested property. Orvis v. Brownell, U.S.N.Y.1953, 73 S.Ct. 596, 345 U.S. 183, 97 L.Ed. 938. Any right, to assets of German corporation, which accrued to non-German as sole stockholder of corporation involved no such "transfer" or "transaction" as was subject to license requirements of socalled "Freezing order." Pernikoff v. Kennedy, D.C.D.C.1963, 219 F.Supp. 854. A deed by Japanese national and resident of July 25, 1941, and not recorded until July 26, 1941, at 10:30 a.m., to land in Hawaii, conveyed no interest to grantee where attempted transfer was unlicensed and belonged to such Japanese national and resident at the time of the vesting by the Alien Property Custodian. Miyuki Okihara v. Clark, D.C.Hawai'i 1947, 71 F.Supp. 319. Even though claim by corporation against New York agency of Japanese bank was entitled to recognition as a preferred claim against
assets of New York agency in hands of superintendent of banks, corporation's assignee was not entitled either to principal of claim or to accrual of interest thereon, where federal regulations required license to be procured under Ex.Ord. No. 8389 as amended, set out as note under this section, before payment could be made, and documents relied upon by assignee to license payment failed to do so. Singer v. Yokohama Specie Bank, Limited, N.Y.1949, 85 N.E.2d 894, 299 N.Y. 113, motion granted 87 N.E.2d 684, 299 N.Y. 791, motion denied 88 N.E.2d 324, 300 N.Y. 459, certiorari granted 70 S.Ct. 517, 339 U.S. 902, 94 L.Ed. 1331, certiorari granted 70 S.Ct. 517, 339 U.S. 902, 94 L.Ed. 1332, affirmed 70 S.Ct. 903, 339 U.S. 841, 94 L.Ed. 1323.
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