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FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 AM INDEX NO. 650416/2023
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023
EXHIBIT M
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FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023
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93
AfEdavit of Hans I. L. Adler, Read in 277
Opposition to Motion.
SUPREME COURT OF THE STATE
OF NEW YORK
CouNTY oF NEw.Yoax
SA M E T I T L E<
STATE OF NEw Yon8l
County of New York
278
HANS I. L. ADLER, being duly sworn, deposes
and says:
1) For many years past, both alone and with
others I have had the active manage-
designated,
ment of the affairs of the plaintiff corporation.
position is comparable to that of the presi-
My
dent and treasurer of an American corporation.
Under the laws of the Kingdom of the Nether-
lands, the management of a corporation is in the
hands of of which I am one. The man-
managers,
agers are appointed by the stockholders. These
Ameri- 279
managers are equivalent to the officers of
can corporations. The authority given to me is
that of chief manager. In addition to the man-
agers of Netherlands corporations there is a
board of directors which is more or less of a
as the for manage-
supervising body, authority
ment and administration is in the hands of the
managers. In verifying the complaint I described
myself as managing director.
2) The stock of the plaintiff corporation is
owned and controlled by members of the Adler
and Oppenheimer families, who own 100 per cent
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280 Afidavit of Hans I. L. Adler, Read in
Opposition to Motion.
thereof. All of them are outside of Ger-
today
man-controlled were outside of such ter-
territory,
ritory prior to May 10, 1940, and none of such
stockholders is directly or indirectly subject to
kind of coercion or control German author-
any by
ities. The stock of the corporation is physically
located within the United States. All of the stock-
holders are not here. Absent stockholders have
stockholders' meet-
been represented by proxy at
ings held at Curacao, Netherlands West Indies,
281
as hereinafter described.
3) The plaintiff admittedly has money to its
credit in the defendant banks. The amount on
deposit with the Chase National Bank of the City
of New York is $47,818.20; the amount on deposit
with the Central Hanover Bank and Trust Com-
pany is $51,491.27; the amount on deposit with
the Commercial National Bank and Trust Com-
pany of New York is $350,749.36.
In May, 1941, as appears from the complaints,
the plaintiff corporation duly demanded that the
funds deposited with the defendant banks be
282
transferred to its designee, but the defendants
failed and refused to honor such in-
respectively
structions. Enclosed with the instructions to the
banks were licenses issued by the Federal Reserve
Bank, authorizing such transfers. The Central
Hanover Bank and Trust Company was directed
to transfer to the Irving Trust Company the
amount of the credit of the plaintiff; the other
two defendant banks were directed to transfer to
the Colonial Trust Company the amounts to the
credit of the plaintiff. Copies of such letters of
instructions are hereto annexed, marked Exhibits
"B"
"A", and "C".
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95
Af)idavit of Hans I. L. Adler, Read in 283
Opposition to Motion.
4) The authority of the managers is and has
been evidenced by letters and powers of attorney.
a) Complete authority has been vested in me
since February 17, 1940, to act in the name of the
corporation during my stay in the United States
of America, "to dispose of our deposits, stocks,
goods and claims, in a word, to do any act of trade
or commerce which will be for our com-
binding
pany."
This general authority has never been
revoked. This authority with the certification 284
thereof as
"N" in
appears Exhibit the motion
papers of the defendant, The Chase National Bank
"L"
of the City of New York; Exhibit in the
motion papers of the defendant The Commercial
National Bank and Trust Company of New York;
"I" de-
and Exhibit in the motion papers of the
fendant Central Hanover Bank and Trust Com-
pany.
b) In addition to the aforesaid, authority was
likewise vested in myself and Max Weil, as
authorized the proper board of our corpora-
by
tion while functioning at Oisterwijk, Holland.
285
That authority arose when the accounts were first
opened and appears as Exhibit
"B" in the Chase
National Bank motion as
"B"
papers; Exhibit in
the Commercial National Bank and Trust Com-
motion and
"D"
pany papers, as Exhibit in the
Central Hanover Bank and Trust mo-
Company
tion papers. From those exhibits it appears that
the list of persons authorized to sign was sent
to the Chase National Bank on November 20, 1939;
that to the Commercial National Bank and Trust
Company on April 8, 1937; that to the Central
Hanover Bank and Trust Company on December
20, 1938. In each instance two signatures are re-
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286 Apida,vit of Hans I. L. Adler, Read in
Opposition to Motion.
quired and the first two persons mentioned are
Mr. Max Weil and myself.
c) After the German occupation of Holland
the domicile of the said corporation was trans-
ferred to Willemstad, Curacao, Netherlands West
Indies. In letter of November, 1940 (Exhibit
"J" motion of National
in the papers the Chase
"G-1"
Bank; Exhibit in the motion papers of the
Central Hanover Bank and Trust Company, and
"H-1" Com-
287 Exhibit in the motion papers of the
mercial National Bank and Trust Company) and
in letter of 1941 (Exhibit
"M" in
February 17,
the papers of the Chase National Bank; Exhibit
"H" in the papers of the Central Hanover Bank
and Trust and Exhibit
"K" in the
Company,
papers of the Commercial National Bank and
Trust Company) notification was given to the
banks that I was appointed "sole manager of the
corporation". The letter of November from the
corporation to the various banks, stated:
"Mr. H.I. L. Adler, residing in New York,
Director."
288 has been appointed Managing
The letter of February 17, 1941 stated:
"Coincidental with the change of seat
of the Koninklijke Lederfabriek Oisterwijk
N. V., Dr. H. I. L. Adler was appointed sole
manager of the corporation. A meeting of
stockholders of the Koninklijke Lederfabriek
Oisterwijk N. V., at which 100 per cent of the
stockholders were represented, was held at
Willemstad, Curacao, on January 20, 1941,
which meeting ratified all action previously
taken and passed such addi-
unanimously
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97
Apidavit of Hans I. L. Adler, Read in 289
Opposition to Motion.
tional resolutions which were required under
circumstances.''
the
The latter letter also contained resolutions
adopted at the of shareholders of Janu-
meeting
ary 20; 1941.
Thus, when making the demands on the banks
"B"
(Exhibits "A'', and "C"), the letter was
signed by the corporation (1) by myself and Max
Weil; (2) by myself acting under the power of
myself under the reso- 290
attorney; (3) by acting
stockholders'
lution of the aforesaid meeting.
This was done in order that there could be no
question as to to bind the corpora-
my authority
tion.
I have read the affidavits submitted in sup-
5)
port of the application of the various defendants
for orders pursuant to Section 51-A of the Civil
Practice Act, seeking leave to give notice to the
plaintiff corporation purportedly located at
Oisterwijk, Holland, and at Amsterdam, Holland,
as well as to various other persons including one
291
Hubert Huppertz, individually and as purported
fiduciary of said corporation who, it is said, was
appointed in that capacity by the Commissioner
of the Reich for the occupied territory of the
Kingdom of the Netherlands.
The defendants claim that the persons to whom
such notice is sought to be given are adverse
claimants to the funds on deposit with them re-
spectively, which funds stand to the credit and in
the name of the plaintiff corporation. I re s pect-
defendants'
fully submit that the application
should be denied for the reason that it is clear
from the motion papers that there are no adverse
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292 Apidavit of Hans I. L. Adler, Read in
Opposition to Motion.
claimants to such funds and that the plaintiff cor-
poration only is entitled to deal with and dispose
of the same. There is in the papers sub-
nothing
mitted by the moving defendants to indicate that
any third party makes any claim whatever to the
funds on deposit in New York. The situation is
one at former employees of the com-
where, most,
pany in Holland, under German control (contrary
to the law of the Netherlands) have sent letters
to the defendants to the effect that officers of the
293 corporation here have no right to act for and to
represent the corporation.
No claim is made to the funds on deposit here.
These funds without question to the plain-
belong
tiff corporation. The officers of the plaintiff cor-
poration in America contend, and if the fact is
disputed, will be able to show, that they are
authorized to act for the corporation. The de-
fendants'
papers nowhere show any claim to this
fund made by any of the individuals mentioned or
by the persons who are alleged to have given
notice to the defendant banks.
294
6) After the invasion by the German armed
forces of the territory of the Kingdom of the
Netherlands, the plaintiff corporation, pursuant
to the laws set forth in the moving papers of the
defendants, changed its domicile and sphere of
activities to Willemstad, Curacao, Netherlands
West Indies. This was done pursuant to the
law of April the Royal Nether-
26, 1940, whereby
lands Government, acting through its parliament,
authorized corporations domiciled in any of the
territories of the Kingdom, to transfer their
domicile (place of establishment) to any other
territory of the Kingdom. On May 24th a decree
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99
Apidavit of Hans I. L. Adler, Read in 295
Opposition to Motion.
of the Royal Netherlands Government was pro-
mulgated in such government all prop-
vesting
erty and claims belonging to the nationals of the
Netherlands domiciled in territory occupied by the
German invading forces, excepting therefrom,
however, the property and claims of corporations
which moved their domicile either to Curacao,
Surinam (Dutch Guiana) or the Netherlands
Indies. On June 7, 1940 there was a further
decree prohibiting any officers, directors or other
representatives of corporation domiciled or 296
any
its place of establishment in occupied ter-
having
from in respect to the as-
ritory, acting affairs,
sets and property of any Dutch corporation, and
acts of any such officers, directors or representa-
tives of Netherlands if emanat-
any corporation,
ing from occupied territory, are made null and
void in respect of property and assets thereof
located outside of the occupied territory.
The recognition of the Netherlands Govern-
ment by the United States entitles these decrees
and laws to validity as the acts of the Netherlands
Government.
297
The aforesaid laws and decrees have not only
been enacted and are valid and binding under the
Netherlands law as appears from affidavits sub-
mitted herewith, but their is not ques-
validity
tioned by the defendants. These laws are set
forth herein in the moving papers of the de-
fendants. Attached hereto and marked Exhibits
"AA" and
"BB"
are re-
copies of letters dated
spectively November 2, 1940, and December 9,
1940, sent to various banks the defend-
including
ant banks by the Netherlands Government certi-
fying to the transfer of the seat of the plaintiff
corporation, its exemption from the decree of
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298 Apidavit of Hans I. L. Adler, Read in
Opposition to Motion.
May 24, 1940, and the authority of the plaintiff
through its present directors and ogicers to deal
with the deposits in said banks. The letter of
November 2, 1940 states specifically:
"Please note that instructions in regard to
said account, if emanating from any source
other than the transferred corporation itself,
are void of legal effect and should be dis-
regarded."
299 letter of 1941 (Exhibit
"M" in
The February 17,
the Chase National Bank motion papers Ex-
;
hibit
"H" in the Central Hanover Bank and Trust
motion Exhibit
"H" in the
Company papers;
Commercial National Bank and Trust Company
motion papers)
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FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 AM INDEX NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 EXHIBIT M INDEX AM FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 93 AfEdavit of Hans I. L. Adler, Read in 277 Opposition to Motion. SUPREME COURT OF THE STATE OF NEW YORK CouNTY oF NEw.Yoax SA M E T I T L E< STATE OF NEw Yon8l County of New York 278 HANS I. L. ADLER, being duly sworn, deposes and says: 1) For many years past, both alone and with others I have had the active manage- designated, ment of the affairs of the plaintiff corporation. position is comparable to that of the presi- My dent and treasurer of an American corporation. Under the laws of the Kingdom of the Nether- lands, the management of a corporation is in the hands of of which I am one. The man- managers, agers are appointed by the stockholders. These Ameri- 279 managers are equivalent to the officers of can corporations. The authority given to me is that of chief manager. In addition to the man- agers of Netherlands corporations there is a board of directors which is more or less of a as the for manage- supervising body, authority ment and administration is in the hands of the managers. In verifying the complaint I described myself as managing director. 2) The stock of the plaintiff corporation is owned and controlled by members of the Adler and Oppenheimer families, who own 100 per cent Digitized byGoogle INDEX AM FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 94 280 Afidavit of Hans I. L. Adler, Read in Opposition to Motion. thereof. All of them are outside of Ger- today man-controlled were outside of such ter- territory, ritory prior to May 10, 1940, and none of such stockholders is directly or indirectly subject to kind of coercion or control German author- any by ities. The stock of the corporation is physically located within the United States. All of the stock- holders are not here. Absent stockholders have stockholders' meet- been represented by proxy at ings held at Curacao, Netherlands West Indies, 281 as hereinafter described. 3) The plaintiff admittedly has money to its credit in the defendant banks. The amount on deposit with the Chase National Bank of the City of New York is $47,818.20; the amount on deposit with the Central Hanover Bank and Trust Com- pany is $51,491.27; the amount on deposit with the Commercial National Bank and Trust Com- pany of New York is $350,749.36. In May, 1941, as appears from the complaints, the plaintiff corporation duly demanded that the funds deposited with the defendant banks be 282 transferred to its designee, but the defendants failed and refused to honor such in- respectively structions. Enclosed with the instructions to the banks were licenses issued by the Federal Reserve Bank, authorizing such transfers. The Central Hanover Bank and Trust Company was directed to transfer to the Irving Trust Company the amount of the credit of the plaintiff; the other two defendant banks were directed to transfer to the Colonial Trust Company the amounts to the credit of the plaintiff. Copies of such letters of instructions are hereto annexed, marked Exhibits "B" "A", and "C". Digitized by GOOgle INDEX AM FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 95 Af)idavit of Hans I. L. Adler, Read in 283 Opposition to Motion. 4) The authority of the managers is and has been evidenced by letters and powers of attorney. a) Complete authority has been vested in me since February 17, 1940, to act in the name of the corporation during my stay in the United States of America, "to dispose of our deposits, stocks, goods and claims, in a word, to do any act of trade or commerce which will be for our com- binding pany." This general authority has never been revoked. This authority with the certification 284 thereof as "N" in appears Exhibit the motion papers of the defendant, The Chase National Bank "L" of the City of New York; Exhibit in the motion papers of the defendant The Commercial National Bank and Trust Company of New York; "I" de- and Exhibit in the motion papers of the fendant Central Hanover Bank and Trust Com- pany. b) In addition to the aforesaid, authority was likewise vested in myself and Max Weil, as authorized the proper board of our corpora- by tion while functioning at Oisterwijk, Holland. 285 That authority arose when the accounts were first opened and appears as Exhibit "B" in the Chase National Bank motion as "B" papers; Exhibit in the Commercial National Bank and Trust Com- motion and "D" pany papers, as Exhibit in the Central Hanover Bank and Trust mo- Company tion papers. From those exhibits it appears that the list of persons authorized to sign was sent to the Chase National Bank on November 20, 1939; that to the Commercial National Bank and Trust Company on April 8, 1937; that to the Central Hanover Bank and Trust Company on December 20, 1938. In each instance two signatures are re- Digitized byGoogle INDEX AM FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 96 286 Apida,vit of Hans I. L. Adler, Read in Opposition to Motion. quired and the first two persons mentioned are Mr. Max Weil and myself. c) After the German occupation of Holland the domicile of the said corporation was trans- ferred to Willemstad, Curacao, Netherlands West Indies. In letter of November, 1940 (Exhibit "J" motion of National in the papers the Chase "G-1" Bank; Exhibit in the motion papers of the Central Hanover Bank and Trust Company, and "H-1" Com- 287 Exhibit in the motion papers of the mercial National Bank and Trust Company) and in letter of 1941 (Exhibit "M" in February 17, the papers of the Chase National Bank; Exhibit "H" in the papers of the Central Hanover Bank and Trust and Exhibit "K" in the Company, papers of the Commercial National Bank and Trust Company) notification was given to the banks that I was appointed "sole manager of the corporation". The letter of November from the corporation to the various banks, stated: "Mr. H.I. L. Adler, residing in New York, Director." 288 has been appointed Managing The letter of February 17, 1941 stated: "Coincidental with the change of seat of the Koninklijke Lederfabriek Oisterwijk N. V., Dr. H. I. L. Adler was appointed sole manager of the corporation. A meeting of stockholders of the Koninklijke Lederfabriek Oisterwijk N. V., at which 100 per cent of the stockholders were represented, was held at Willemstad, Curacao, on January 20, 1941, which meeting ratified all action previously taken and passed such addi- unanimously Digitized byGoogle INDEX AM FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 97 Apidavit of Hans I. L. Adler, Read in 289 Opposition to Motion. tional resolutions which were required under circumstances.'' the The latter letter also contained resolutions adopted at the of shareholders of Janu- meeting ary 20; 1941. Thus, when making the demands on the banks "B" (Exhibits "A'', and "C"), the letter was signed by the corporation (1) by myself and Max Weil; (2) by myself acting under the power of myself under the reso- 290 attorney; (3) by acting stockholders' lution of the aforesaid meeting. This was done in order that there could be no question as to to bind the corpora- my authority tion. I have read the affidavits submitted in sup- 5) port of the application of the various defendants for orders pursuant to Section 51-A of the Civil Practice Act, seeking leave to give notice to the plaintiff corporation purportedly located at Oisterwijk, Holland, and at Amsterdam, Holland, as well as to various other persons including one 291 Hubert Huppertz, individually and as purported fiduciary of said corporation who, it is said, was appointed in that capacity by the Commissioner of the Reich for the occupied territory of the Kingdom of the Netherlands. The defendants claim that the persons to whom such notice is sought to be given are adverse claimants to the funds on deposit with them re- spectively, which funds stand to the credit and in the name of the plaintiff corporation. I re s pect- defendants' fully submit that the application should be denied for the reason that it is clear from the motion papers that there are no adverse Digitized byGOOgle INDEX AM FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 98 292 Apidavit of Hans I. L. Adler, Read in Opposition to Motion. claimants to such funds and that the plaintiff cor- poration only is entitled to deal with and dispose of the same. There is in the papers sub- nothing mitted by the moving defendants to indicate that any third party makes any claim whatever to the funds on deposit in New York. The situation is one at former employees of the com- where, most, pany in Holland, under German control (contrary to the law of the Netherlands) have sent letters to the defendants to the effect that officers of the 293 corporation here have no right to act for and to represent the corporation. No claim is made to the funds on deposit here. These funds without question to the plain- belong tiff corporation. The officers of the plaintiff cor- poration in America contend, and if the fact is disputed, will be able to show, that they are authorized to act for the corporation. The de- fendants' papers nowhere show any claim to this fund made by any of the individuals mentioned or by the persons who are alleged to have given notice to the defendant banks. 294 6) After the invasion by the German armed forces of the territory of the Kingdom of the Netherlands, the plaintiff corporation, pursuant to the laws set forth in the moving papers of the defendants, changed its domicile and sphere of activities to Willemstad, Curacao, Netherlands West Indies. This was done pursuant to the law of April the Royal Nether- 26, 1940, whereby lands Government, acting through its parliament, authorized corporations domiciled in any of the territories of the Kingdom, to transfer their domicile (place of establishment) to any other territory of the Kingdom. On May 24th a decree Digitized byGoogle INDEX AM FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 99 Apidavit of Hans I. L. Adler, Read in 295 Opposition to Motion. of the Royal Netherlands Government was pro- mulgated in such government all prop- vesting erty and claims belonging to the nationals of the Netherlands domiciled in territory occupied by the German invading forces, excepting therefrom, however, the property and claims of corporations which moved their domicile either to Curacao, Surinam (Dutch Guiana) or the Netherlands Indies. On June 7, 1940 there was a further decree prohibiting any officers, directors or other representatives of corporation domiciled or 296 any its place of establishment in occupied ter- having from in respect to the as- ritory, acting affairs, sets and property of any Dutch corporation, and acts of any such officers, directors or representa- tives of Netherlands if emanat- any corporation, ing from occupied territory, are made null and void in respect of property and assets thereof located outside of the occupied territory. The recognition of the Netherlands Govern- ment by the United States entitles these decrees and laws to validity as the acts of the Netherlands Government. 297 The aforesaid laws and decrees have not only been enacted and are valid and binding under the Netherlands law as appears from affidavits sub- mitted herewith, but their is not ques- validity tioned by the defendants. These laws are set forth herein in the moving papers of the de- fendants. Attached hereto and marked Exhibits "AA" and "BB" are re- copies of letters dated spectively November 2, 1940, and December 9, 1940, sent to various banks the defend- including ant banks by the Netherlands Government certi- fying to the transfer of the seat of the plaintiff corporation, its exemption from the decree of Digitized byGoogle INDEX AM FILED: NEW YORK COUNTY CLERK 03/21/2023 09:49 NO. 650416/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 03/21/2023 100 298 Apidavit of Hans I. L. Adler, Read in Opposition to Motion. May 24, 1940, and the authority of the plaintiff through its present directors and ogicers to deal with the deposits in said banks. The letter of November 2, 1940 states specifically: "Please note that instructions in regard to said account, if emanating from any source other than the transferred corporation itself, are void of legal effect and should be dis- regarded." 299 letter of 1941 (Exhibit "M" in The February 17, the Chase National Bank motion papers Ex- ; hibit "H" in the Central Hanover Bank and Trust motion Exhibit "H" in the Company papers; Commercial National Bank and Trust Company motion papers)