In re the Accounting of Fechter , 180 Misc. 1025 ( 1943 )

Henderson, S.

This is a proceeding to compel an administratrix to file an account. It has been brought by the Consul General of the Bepublic of Poland, acting in behalf of his national, a sister of the decedent and one of the distributees. The administratrix contends that the Polish Consul has no right to appear and act on behalf of his national, who resides in Polish territory occupied by Germany. She alleges by an answer that the Alien Property Custodian has appeared in this proceeding and therefore is vested with exclusive power to represent such nonresident alien.

No order has ever been entered vesting in the Alien Property Custodian any interest in this estate.

An examination of the papers filed herein discloses that the Alien Property Custodian, as an official, has not appeared herein. A notice of appearance on behalf of the distributee, “ a person within enemy occupied territory ”, was interposed by an attorney who is therein described as “ Of the office of Alien Property Custodian ”. A letter written by an assistant to the Alien Property Custodian designated such attorney to appear for and represent the distributee. This is no appearance by the Alien Property Custodian (Surrogate’s Ct. Act, § 41). Even if the appearance were to be considered an official one, it would not be exclusive. In the language of Surrogate Delehanty (Matter of Schulte, 180 Misc. 1023), “ It does not follow because the attorney designated by the Alien Property Custodian is entitled to appear, that he is the sole representative to appear in the proceeding. * * * While in some set of circumstances there may be an overlapping of appearances, that is not an unmixed evil in wartime conditions. In fact it may be essential to the protection of all the rights involved.”

Despite the invasion and occupation of Poland, its sovereignty has not been impaired, nor have its diplomatic relations with the United States been extinguished. The treaty between the Republic of Poland and the United States continues in full force and effect. (Treaty of Friendship, Commerce and Consular Rights, dated June 15, 1931, ratified and proclaimed July 10, 1933, 48 U. S. Stat. 1507.) By that treaty, consular officers are entitled to appear in proceedings for the protection of their nationals where such persons have not “appeared either in person or by duly authorized representative.” (Art. XXIV.) Here the Polish distributee has neither appeared in person nor by duly authorized representative.

Recognition of the right of a consular representative, pursuant to treaty, to assert or defend the property rights of his nationals has been given by the United States Supreme Court (The Bello Gorrunes, 6 Wheat. 152; Santovincenzo v. Egan, 284 U. S. 30) and by our own State courts (Matter of Gastorino, 259 App. Div. 861; Matter of Katz, 152 Misc. 757; Matter of Bernabeo, 152 Misc. 237; Matter of Houston, 145 Misc. 417). This distributee is entitled to have her property rights and interests safeguarded by the duly recognized consular representative of her country even though the disposition of her property is controlled by regulations of the Alien Property Custodian.

It is conclusive that the terms of the treaty with Poland are binding and subject to enforcement in this and all other courts of this State, and the Consul General must be allowed to petition on behalf of his national.

The administratrix will be directed to file her account together with a petition for its judicial settlement and to obtain the issuance of a citation within ten days after the service upon her of a copy of such order, with notice of entry thereof, and to complete service of such citation without undue delay.

Settle order.