234 N.Y. 372, 138 N.E. 24

WULFSOHN et al.
v.
RUSSIAN SOCIALIST FEDERATED SOVIET REPUBLIC.

Court of Appeals of New York.

Jan. 9, 1923.

[**25] [*373] COUNSEL:  Appeal from Supreme Court, Appellate Division, Second Department.

Osmond K. Fraenkel and Charles Recht, both of New York City, for appellant.

Otto C. Sommerich, Maxwell C. Katz and Edwin M. Borchard, all of New York City, for respondents.

[*374]  JUDGE:  ANDREWS, J.

The Russian Federated Soviet Republic is the existing de facto government of Russia. This is admitted by the plaintiff. Otherwise there is no proper party defendant before the court. It is claimed by the defendant. The Appellate Division states that it is a matter of common knowledge. It has not been recognized by the government of the United States. The plaintiffs owned a quantity of furs. They were stored in Russia and they were confiscated by the Russian government. Treating this act as a conversion the present action is brought.

The litigation is not, therefore, with regard to title to property situated within the jurisdiction of our courts, where the result depends upon the effect to be given to the action of some foreign government. Under such circumstances it might be that the theory of the comity of nations would have a place. The Annette, L. R. 1919 Pro. Div. 105; The Nueva Anna, 6 Wheat. 193, 5 L. Ed. 239; Oetjen v. Central Leather Co., 246 U. S. 297, 38 Sup. Ct. 309, 62 L. Ed. 726; Luther v. [*375] Sagor, [1921] 1 K. B. 456; s. c. [1921] 3 K. B. 532. A different case is presented to us. The government itself is sued for an exercise of sovereignty within its own territories on the theory that such an act, if committed by an individual here, would be a tort under our system of municipal law. It is said that, because of nonrecognition by the United States, such an action may be maintained. There is no relation between the premise and the conclusion.

The result we reach depends upon more basic considerations than recognition or nonrecognition by the United States. Whether or not a government exists, clothed with the power to enforce its authority within its own territory, obeyed by the people over whom it rules, capable of performing the duties and fulfilling the obligations of an independent power, able to enforce its claims by military force is a fact, not a theory. For its recognition does not create the state, although it may be desirable. So only are diplomatic relations permitted. Treaties made with the government which it succeeds may again come into effect. It is a testimony of friendly intentions. Also in the country granting the recognition that act is conclusive as to the existence of the government recognized. Taylor v. Barclay, 2 Sim. 213; Republic of Peru v. Dreyfus, L. R. 38 Ch. Div. 348; Republic of Peru v. Peruvian Guano Co., L. R. 36 Ch. Div. 489. Again, recognition may become important where the actual existence of a government created by rebellion or otherwise becomes a political question affecting our neutrality laws, the recognition of the decrees of prize courts, and similar questions. But, except in such instances, the fact of the existence of such a government whenever it becomes material may probably be proved in other ways. Yrisarri v. Clement, 3 Bing. 432; The Charkieh, L. R. 4 A. & E. 59. But see Mighell v. Sultan of Johore, [1894] 1 Q. B. 158; Luther v. Sagor, [1921] 1 K. B. 456, 471.

Here, however, we need no proof. The fact is conceded. We have an  [*376]  existing government,  [**26]  sovereign within its own territories.

There necessarily its jurisdiction is exclusive and absolute. It is susceptible of no limitation not imposed by itself. This is the result of its independence. It may be conceded that its actions should accord with natural justice and equity. If they do not, however, our courts are not competent to review them. They may not bring a foreign sovereign before our bar, not because of comity, but because he has not submitted himself to our laws. Without his consent he is not subject to them. Concededly that is so as to a foreign government that has received recognition. The Schooner Exchange v. McFaddon, 7 Cranch, 116, 3 L. Ed. 287; Porto Rico v. Rosaly y Castillo, 227 U. S. 270, 33 Sup. Ct. 352, 57 L. Ed. 507; Oetjen v. Central Leather Co., 246 U. S. 297, 38 Sup. Ct. 309, 62 L. Ed. 726; Underhill v. Hernandez, 168 U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 456; American Banana Co. v. United Fruit Co., 213 U. S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047; Ricaud v. American Metal Co., 246 U. S. 304, 38 Sup. Ct. 312, 62 L. Ed. 733; Hassard v. United States of Mexico, 29 Misc. Rep. 511, 61 N. Y. Supp. 939, affirmed, 173 N. Y. 645, 66 N. E. 1110; Mason v. Intercolonial Railway of Canada, 197 Mass. 349, 83 N. E. 876, 16 L. R. A (N. S.) 276, 125 Am. St. Rep. 371, 14 Ann. Cas. 574; Wadsworth v. Queen of Spain, 17 Q. B. 171; Vavasseur v. Krupp, L. R. 9 Ch. Div. 351; Strousberg v. Republic of Costa Rica, 44 L. T. 199.

But, whether recognized or not, the evil of such an attempt would be the same. ‘To cite a foreign potentate into a municipal court for any complaint against him in his public capacity is contrary to the law of nations, and an insult which he is entitled to resent.’ De Haber v. Queen of Portugal, 17 Q. B. 171. In either case, to do so would ‘vex the peace of nations.’ In either case the hands of the state department would be tied. Unwillingly it would find itself involved in disputes it might think unwise. Such is not the proper method of redress, if a citizen of the United States is wronged. The question is a political one, not confided to the courts, but to another department of government. Whenever an act done by a sovereign in his sovereign character is questioned, it becomes a matter of negotiation, or of reprisals, or of war.

[*377]  If the complaint and the affidavits upon which the warrant of attachment was based in the case before us clearly indicate that the plaintiffs must ultimately fail, the warrant should be vacated. It does so appear in this case.

The orders, therefore, appealed from, should be reversed, with costs in all courts, and motions to vacate attachment granted, with costs, and the question certified to us should be answered in the negative.

HISCOCK, C. J., and HOGAN, CARDOZO, POUND, and McLAUGHLIN, JJ., concur.

CRANE, J., dissents.

Ordered accordingly.