RUSSIAN SOCIALIST FEDERATED rubles, and the committee, in addition to paying the

prices therein mentioned for the goods, were to pay

REPUBLIC V. CIBRARIO the defendant Cibrario six per cent of the total
purchase price, as commission, one per cent on the
KEY PASSAGES FROM THIS CASE (1) entire sum to be paid him at once as a guaranty of
fulfillment by the committee. The sum of $10,000 was
in fact paid by the plaintiff to Cibrario as an advance
I. Not only are the courts bound to take judicial
payment on his commissions.
notice of public matters, as before stated, which
In August, 1918, plaintiff delivered to Dr. Wm. C.
bear upon the question of our recognition of Huntington, American commercial attache at
foreign sovereignties, but they have the right, Petrograd, the sum of $1,000,000 to be deposited in a
reliable banking institution in the United States of
where they are in doubt as to the facts, to call America, subject to drafts drawn on the conditions
upon the Department of State for the necessary contained in the contract referred to, a copy of which
was to be filed with the institution selected. Thereafter
information. Quoted 1 time
Dr. Huntington caused the said sum of $1,000,000 to
be deposited with the National City Bank of New York
DOWLING, J.: in accordance with the terms of the agreement, a copy
of which was deposited with it, and the deposit was
This action is brought by plaintiff in its alleged capacity accepted subject to the limitations and terms imposed
of a sovereign State, to compel the defendants to by the agreement upon the withdrawal of the funds so
account for moneys which, it is claimed, the defendant deposited.
Cibrario fraudulently obtained under a contract made
by him on July 24, 1918, with the Cinematographic The plaintiff contends that, under the contract, the
Committee of the Commissariat of Public Instruction, defendant Cibrario was acting as its purchasing agent
which is alleged to be a subordinate government body and nothing more, and could not lawfully make a profit
of the plaintiff. on the purchase and sale of the goods in question. It
claims that the defendant Cibrario bought inferior
There is no dispute as to the making of this contract goods at prices much lower than those mentioned in
with the committee. It is in writing, and a translation the contract, and obtained payment for them from the
thereof is annexed to the complaint. National City Bank, at the contract price, securing the
difference for his own use, either by buying the goods
This contract provided for the purchase by the
in the name of a dummy corporation and having it bill
cinematographic committee, of certain moving picture
them at the contract price to the committee, or by
machines, apparatus, film and material, at designated
having the manufacturers bill the goods at the
prices mentioned therein, aggregating 16,985,500
contract price and rebate the difference to Cibrario. In
substance plaintiff charges that Cibrario made large to as the Cinematographic Committee, is a
secret profits in connection with his purchases, that subordinate government body thereof."
the materials purchased were not in compliance with
the contract, but were in large part worthless, and that The allegation that the plaintiff is a sovereign State is
the time limitation prescribed by the contract was not not conclusive upon the court, where the truth is
observed. otherwise, as proven by public matters of which the
court is bound to take judicial notice.
It is also charged that various corporations named as
defendants in this action were organized by Cibrario In Taylor v. Barclay (2 Sim. 213) a bill in equity was
for the purpose of defrauding the plaintiff, and that based on an agreement which it alleged had been
their sole assets consist of the plaintiff's moneys made in 1825 by agents of "the government of the
received by Cibrario in violation of his trust. Federal Republic of Central America, which was a
sovereign and independent State, recognized and
A receiver was asked of the effects of the defendant treated as such by His Majesty, the King of these
Cibrario, as well as of the various corporations realms." On demurrer, Vice-Chancellor SHADWELL
organized and controlled by him, and of all their dismissed the bill, saying: "I have had communication
property, as well as an injunction restraining the with the Foreign Office, and I am authorized to state
transfer of any of their property, in order to preserve that the Federal Republic of Central America has not
whatever might remain of plaintiff's funds pending the been recognized as an independent government by
trial of this action. From the order appointing such the government of this country. * * * Inasmuch as I
receiver this appeal is taken. conceive it is the duty of the judge in every court to
take notice of public matters which affect the
The first objection raised by the defendants is, that the government of this country, I conceive that,
"Russian Socialist Federated Soviet Republic," never notwithstanding there is this averment in the bill, I am
having been recognized as a sovereignty by the bound to take the fact as it really exists, not as it is
executive or legislative departments of the United averred to be. * * * Nothing is taken to be true, except
States government, has no capacity to sue in the that which is properly pleaded; and I am of opinion
courts of the United States, or of any of the States. that when you plead that which is historically false,
and which the Judges are bound to take notice of as
The complaint herein contains the following
being false, it cannot be said that you have properly
allegations: "That the Russian Socialist Federated
pleaded, merely because it is averred, in plain terms;
Soviet Republic, hereinafter referred to as the Russian
and that I must take it just as if there was no averment
Soviet Government, is a sovereign State, having its
on the record." (Quoted with approval
seat of government at Moscow, Russia; that George
in Jones v. United States, 137 U.S. 202, 215.)
Tchicherin is the People's Commissar of Foreign Affairs;
that the Cinematographic Committee of the In Oetjen v. Central Leather Co. ( 246 U.S. 301) the
Commissariat of Public Instruction, hereinafter referred court said: "This court will take judicial notice of the
fact that, since the transactions thus detailed and matters of law which it is their office to know, the
since the trial of this case in the lower courts, the judges may refresh their memory and inform their
government of the United States recognized the conscience from such sources as they deem most
government of Carranza as the de facto government of trustworthy. * * * As to international affairs, such as the
the Republic of Mexico on October 19, 1915, and as recognition of a foreign government, or of the
the de jure government on August 31, 1917." diplomatic character of a person claiming to be its
representative, they may inquire of the Foreign Office
The question of whether the plaintiff is a sovereign or the Department of State." (See,
State must be determined by the court, not on its own also, Underhill v. Hernandez, 168 U.S.
initiative, but by reference to the public acts of the 250; Ricaud v. American Metal Co., 246 id. 304.)
executive and legislative departments of the
government, of which the courts are bound to take In Agency of Canadian Car Foundry Co., Ltd.,
judicial notice. v. American Can Co. (258 Fed. Rep. 363) the court said
(at p. 368): "On July 5, 1917, the United States
As was said in Jones v. United States ( supra) at page government recognized Boris Bakhmetieff as the
212: "Who is the sovereign, de jure or de facto, of a Russian ambassador. The record contains a certificate,
territory is not a judicial, but a political question, the signed and sealed on May 8, 1918, by Robert Lansing,
determination of which by the legislative and Secretary of State of the United States of America,
executive departments of any government stating that Boris Bakhmetieff presented his letter of
conclusively binds the judges, as well as all other credence to the President and was officially received
officers, citizens and subjects of that government. This by the President as ambassador extraordinary and
principle has always been upheld by this court, and plenipotentiary of Russia on July 5, 1917, and that he
has been affirmed under a great variety of has since that date been recognized by the
circumstances." (Citing Gelston v. Hoyt, 3 Wheat. 246, Department of State as the ambassador of Russia. * * *
and other cases.) "It is equally well settled in England."
(Citing The Pelican, Edw. Adm. Appx. D, and other "Who is the sovereign de jure or de facto of a country
cases.) And again at page 214 the court said: "All is a question for the political departments of the
courts of justice are bound to take judicial notice of the government. It is not a judicial question. The decision
territorial extent of the jurisdiction exercised by the of the matter by the political departments is in this
government whose laws they administer, or of its country conclusive upon the judges. Jones v. United
recognition or denial of the sovereignty of a foreign States, 137 U.S. 202, 212, 11 Sup. Ct. 80, 34 L. Ed.
power, as appearing from the public acts of the 691. The same principle is the established law of
legislature and executive, although those acts are not England. Republic of Peru v. Dreyfus, 38 Ch. Div. 348,
formally put in evidence, nor in accord with the 356, 359. In the same way the question who
pleadings." And again the court said (at p. 216): "In represents and acts for a foreign government or nation
the ascertainment of any facts of which they are in its relations with the United States is determined,
bound to take judicial notice, as in the decision of not by the judicial department, but exclusively by the
political branch of the government. In re Baiz, 135 U.S. In the recent case of Aksionairnoye Obschestvo Dlia
403, 10 Sup. Ct. 854, 34 L. Ed. 222. So that the Mechanic-sheskoyi Obrabotky Diereva A.M.
certificate of the Secretary of State, above referred to, Luther v. James Sagor Co. (L.R. [1921] 1 K.B. 456;
certifying to the official character of Boris revd., 3 id. 532; 7 Lloyd's List Law Rep. 218; editorially
Bakhmetieff's as the Russian ambassador to the United considered in the Law Journal of London, May 21,
States is not only evidence, but it is the best evidence 1921) an appeal had been taken from a judgment of
of Mr. Bakhmetieff's diplomatic character, and is to be Mr. Justice ROCHE, by which it was declared that the
regarded by the courts as conclusive of the question, plaintiffs were unincumbered owners of a quantity of
and the court could not proceed upon argumentative veneer which the appealing defendants had bought
and collateral proof." from the Soviet government of Russia through M.
Krassin and had shipped from Russia to Hull and
London. The goods in question had been taken
possession of by the Soviet government in 1919 under
1
its decree for the nationalization of all private
Not only are the courts bound to take judicial notice of
property, including factories such as that conducted by
public matters, as before stated, which bear upon the
plaintiffs. The goods in suit had been sold by Krassin,
question of our recognition of foreign sovereignties,
representing the Soviet regime, to defendants in
but they have the right, where they are in doubt as to
England in 1920. The plaintiffs contended that the so-
the facts, to call upon the Department of State for the
called government had no existence as such, never
necessary information. "In judicial proceedings
having been recognized by the English government,
involving the question of the existence of a particular
and that the seizure of their goods was pure robbery.
government, the action of the Department of State
As an alternative, they contended that the decree of
`has been confined to furnishing, upon application of
the so-called government nationalizing all factories, as
any court, a statement of the actual status of
a result of which their goods were seized, was not a
diplomatic relations between the United States and the
decree which the courts of England would recognize.
government in question.'" (Secretary of State John W.
Mr. Justice ROCHE decided both points in their favor. In
Foster to Seor Bolet Peraza, Venezuelan Minister,
so doing, he acted on letters received from the Foreign
September 21, 1892. Foreign Relation, 1892, p. 644,
Office in November, 1920, which he held showed that
quoted in Moore's International Law Digest, vol. 1, p.
His Majesty's government had not recognized the
247.)
Soviet government as the de facto government of
In England, Sir FREDERICK POLLOCK declared (Law
Russia.
Quarterly, April, 1921, p. 249), dealing with the
problem "What is a Nation?" that "the only strictly When the appeal first came on to be heard in the Court
legal question is, What is a sovereign State? and the of Appeal of England (April 29, 1921), the counsel for
only legal answer is that, which in case of doubt, the appellants stated that he was in receipt of a letter from
Court obtains from the Foreign Office." the Foreign Office for the information of the court
(dated April 20) stating that the Soviet government accepted by the courts of that country as settling the
had been recognized as a de facto sovereignty by status of the Soviet government; and that even if the
England, whereupon an adjournment was taken. (7 morality or justice of a decree made by a duly
Lloyd's List, 110.) The case again came up for recognized sovereign State could be questioned in the
argument on May second, and at its conclusion Lord courts of England (which the court did not pass on),
Justice BANKES announced "that the court would the court could not treat the decree in question
consider their judgment, and that in the meantime, if "otherwise than as the expression by the de
necessary, they would communicate with the Foreign facto Government of a civilized country of a policy
Office as to any further information they might think it which it considered to be in the best interests of that
desirable to have." (Id. p. 158.) country."

The new evidence submitted on the appeal consisted In view of its determination that the judgment was
of two letters from the Foreign Office. The first of correct when rendered, the Court of Appeal allowed
these, dated April 20, 1921, was written in reply to a respondents the costs of the action, and gave to
request from appellants' solicitors for "a Certificate to appellant the costs of the appeal only. In this case not
the Court of Appeal that the Government of the only was the rule recognized that official recognition is
Russian Socialist Federal Soviet Republic is recognized the sole test of the existence of a foreign
by H.M. Government as the de facto Government of government, de facto or de jure, but, as well, that the
Russia," and stated, on behalf of Earl Curzon of fact of such recognition is to be ascertained from the
Kedleston: "I am to inform you that H.M. Government appropriate governmental authority, and that, if at any
recognizes the Soviet Government as the de time such authority advises the court of a change in
facto Government of Russia." As appears from the the status of a foreign government, the court must act
opinions, it was the trade agreement made on March on that information.
16, 1921, between the government of the United
Kingdom and the government of the Russian Socialist Whenever the question has been raised in this State, it
Federal Soviet Republic which constituted this has been held that the test of the right of a foreign
recognition, and which had been executed on behalf of sovereignty to sue in our courts is its recognition by
the latter party thereto by M. Krassin, who had sold the our own government. Thus in Republic of Mexico v. De
goods in question to the defendant in the action. Arangoiz (5 Duer, 634) the court held that a republic,
recognized as such by our own government, is an
The Court of Appeal held that Mr. Justice ROCHE had independent sovereign power, and, therefore, a State
correctly decided the case upon the evidence which possessing rights which the law defines and may
was before him, but upon the new evidence as to the enforce, having the competency to enforce its rights in
later recognition of the Soviet government, of which a court of justice; and that to deny the right to sue in
the court was bound to take notice, the judgment must our courts to a foreign State, acknowledged as such by
be reversed. This was based on the ground that the our own government and with whom we are at peace,
official recognition by the English government must be would be a grave subject of remonstrance and
complaint and might even be deemed a just cause of the plaintiff government of Yucatan, such as the
war. In its opinion the court said (at p. 637): "We are bringing of the action, were ratified.
satisfied, that to deny any foreign State, whose
independence and sovereignty as such are In Waldes v. Basch ( 109 Misc. Rep. 306; affd., 191
acknowledged by our own government, and with App. Div. 904), it was said (at p. 309): "It is the rule in
whom we are at peace, the right to prosecute its just this country that recognition either of belligerency and
claims in a court of justice, when it is only by the aid independence is a political act which must be
that the court is required to give, that its claims can be exercised by the political branches of government, the
enforced, would be something more than a breach of executive and legislative. It is still a disputed question
national comity, and even something more than a whether it is exclusively executive or whether
violation, if not of the terms, of the spirit of our Federal recognition requires the action of both the executive
Constitution. As an arbitrary denial of justice, it would and legislative branches of the government. The act of
furnish a very grave subject of remonstrance and Congress appropriating moneys for the establishment
complaint, and in the opinion of Lord REDESDALE, of a foreign mission to Czecho-Slovakia and the
might even be deemed a just cause of war." President's proclamation of recognition of that
government as a separate and independent State give
In Republic of Honduras v. Soto ( 112 N.Y. 310) the both of the sanctions which are recognized as
court said (at p. 311): "It is urged by the plaintiff that it necessary political acts for the erection of a new
is neither a person nor a foreign corporation within the sovereignty, and grants an equality to the new State
meaning of the Code. It is not disputed but that the with the already existing States. The courts of the
plaintiff is an independent government, recognized as United States, inclusive of those of the several States,
such by the United States, and capable of entering into are precluded from inquiring further into the question
contracts and acquiring property, as well as and must accept the determination of recognition as
competent, through the rule of comity, of bringing and the conclusion of the proper authority of government."
maintaining actions in the courts of this country."
In the case at bar, while plaintiff claims to be a de
In State of Yucatan v. Argumedo ( 92 Misc. Rep. 547) facto government, and its title and right to sue alike
the authorities were discussed at length. The court rest on that claim, it is unable to show any acts of
upheld its right to entertain jurisdiction of the action recognition by the government of this country. On the
because the authority of the Carranza or contrary, the record proves that, so far as this country
Constitutionalist government of Mexico (including the is concerned, the plaintiff is non-existent as a
State of Yucatan) as that of a de facto government had sovereignty. Originally one "Ludwig C.A.K. Martens,
been recognized by our government, and even though Representative for the United States by Rose Weiss, as
that recognition followed by a few days the institution attorney in fact" was one of the plaintiffs in this action.
of the action, the recognition of the Carranza He was named as such in the summons and complaint
government dated back to its inception, and all acts of herein, and was only eliminated as a party plaintiff by
one of the provisions of the order appealed from. The
record sets forth part of the report of the United States to representations made by anyone purporting to
Senate committee on foreign relations, dated April 14, represent the Bolshevik Government."
1920, on the subject of Russian propaganda, including
the following conclusions of the committee: "In sum, There is also in evidence the following official letter
the Committee finds in obedience to the instructions of from the Secretary of State:
the resolution of the Senate that
"DEPARTMENT OF STATE "In reply refer to
"(1) Martens has no status whatever in this country in "WASHINGTON "So 861.01/321 "Mr. THOMAS W.
any diplomatic or other governmental representative MILLER, "Alien Property Custodian, "Washington, D.C.:
quality.
"SIR. I have received your letter of August 24, 1921,
"(2) Martens assumes to represent the Russian in which you state that the `Russian Socialistic
Federated Soviet Republic, a regime established in Federated Soviet Republic' has instituted suit against
Russia by revolution, and functioning under a Gerhard Hey, Incorporated, one of the corporations
Constitution which has been above summarized; a administered by the Alien Property Custodian under
regime which has never been recognized by the provisions of the Trading with the Enemy Act, and in
Government of the United States, and which in which you request to be informed whether this plaintiff
international law has no standing as a constituted has been recognized by the Government of the United
authority. States.

"(3) Martens has received no recognition officially, or "In reply, I may inform you that the Government of the
even personally, by the Government of the United United States has not recognized the `Russian
States." Socialistic Federated Soviet Republic.'

Martens has since been deported from this country. "I am, Sir, Your obedient servant, "CHARLES E.
HUGHES."
On May 6, 1921, our State Department issued the
following public statement: "The Department of State All these facts appearing without contradiction, it
has received numerous inquiries regarding Mr. L.A. follows that plaintiff, never having been recognized as
Martens, claiming to be a representative of a Russian a sovereignty by the executive or legislative branches
Socialist Federated Soviet Republic. The Department of the United States government, has no capacity to
feels it should be its duty to inform the public that Mr. sue in the courts of this State.
Martens has not been received or recognized as the
The conclusion thus reached finds additional support in
representative of the Government of Russia, or of any
the determination of the United States District Court
other government. As the United States Government
for the Eastern District of New York in the action
has not recognized the Bolshevik regime at Moscow as
brought by the Russian Socialist Federated Soviet
a government, extreme caution should be exercised as
Republic and Ludwig C.A.K. Martens, as agent and
representative thereof, by Rose Weiss, attorney in fact In view of the determination that there is no plaintiff
(the original plaintiffs herein) against The Steamers before the court having capacity to sue, it is
Penza and Tobolsk et al. (decided September 26, 1921) unnecessary to discuss the other reasons advanced by
wherein Judge MANTON, after a most careful analysis appellants for the reversal of the order.
of the authorities, reached the conclusion that "The
Soviet Republic never having been recognized as a The order appealed from is, therefore, reversed, with
sovereign State by this government, it may not ten dollars costs and disbursements, and the motion
maintain this libel in the Federal courts. Its alleged for the appointment of a receiver and for other relief is
agent would have no better or greater rights than his denied, with ten dollars costs.
principal. Therefore, this exception to the libel must be
CLARKE, P.J., SMITH, PAGE and GREENBAUM, JJ., concur.
approved. Since it results in the dismissal of the libel,
there is no necessity for considering the other Order reversed, with ten dollars costs and
exceptions which were filed." disbursements, and motion denied, with ten dollars
costs.
The same conclusion was reached by Judge DIETRICH
in the United States District Court for the Northern
District of California on May 25, 1921, in Russia v. S.S.
Rogdia.