mains to be disposed of a portion of claimant's plea to the jurisdiction, which, to my mind, is vital and dispositive of the entire case. Well on to 100 years ago, the states of New York and New Jersey, after a long series of differences regarding their respective jurisdictions over the waters flowing between them, entered into a compact, which was later approved by the Legislatures of both states, and by Congress in its Act of June 28, 1834 (4 Stat. 708). Those portions of the compact which are pertinent to the present case read as follows: "Article First. The boundary line between the two states of New York and New Jersey, from a point in the middle of Hudson river, opposite the point on the west shore thereof, in the forty-first degree of north latitude, as heretofore ascertained and marked, to the main sea, shall be the middle of the said river, of the bay of New York, of the waters between Staten Island and New Jersey, and of Raritan Bay, to the main sea, except as hereinafter otherwise particularly mentioned. "Article Third. The state of New York shall have and enjoy exclusive jurisdiction of and over all the waters of the bay of New York, and of and over all the waters of Hudson river lying west of Manhattan Island and to the south of the mouth of Spuytenduyvel creek, and of and over the lands covered by the said waters to the low-water mark on the westerly or New Jersey side thereof, subject to the following rights of property and of jurisdiction of the state of New Jersey, that is to say: "1. The state of New Jersey shall have the exclusive right of property in and to the land under water lying west of the middle of the bay of New York, and west of the middle of that part of the Hudson river which lies between Manhattan Island and New Jersey." This language is supplemented in the congressional act of approval by the provision which states that nothing contained in the states' agreement "shall be construed to impair or in any manner affect any right of jurisdiction of the United States in and over the islands or waters which form the subject of the said agreement." By the third article of the agreement, and in language which is unequivocal, the state of New York is given "exclusive jurisdiction of and over all the waters of Hudson river lying west of Manhattan Island, and to the south of the mouth of Spuytenduyvil creek, and of and over the lands covered by said waters, to the low-water mark, on the westerly or New Jersey side thereof," subject to New Jersey's "exclusive right of property in and to the land lying west of the middle of the bay of New York, and west of the middle of that part of the Hudson river which lies between Manhattan Island and New Jersey," and New Jersey's exclusive jurisdiction over wharves, docks, and improvements on her shore and over vessels aground on said shore or fastened to such wharf or dock. "In the case of Devoe Mfg. Co., 108 U. S. 401, 2 S. Ct. 894 [27 L. Ed. 764], the Supreme Court held that the territorial boundaries of the judicial districts should be held to expand or contract according to any change in the boundaries between the states, as lawfully altered from time to time, and that accordingly the agreement as to the boundaries between the states of New York and New Jersey, entered into on the 16th of September, 1833, and approved by Congress June 28, 1834 (see 4 Stat. 708), became operative in determining the territorial limits of the jurisdiction of the federal courts of the two states. The court say (pages 413, 414 [2 S. Ct. 902]): 'We are all of the opinion that, when the act of Congress of 1879 [1 Stat. 73] declared that the New Jersey district should consist of the state of New Jersey, it intended that any territory, land or water, which should at any time, with the express assent of Congress, form part of that state, should form part of the district of New Jersey.' The court accordingly held that the tug in that case was within the territorial jurisdiction of New Jersey, 'because she was within that part of the waters between Staten Island and New Jersey, which by article first of the agreement was set apart for New Jersey.' The subsequent qualification in article 4 of the agreement was held to be a limited qualification, relating solely to quarantine laws, and laws relating to passengers, not affecting the boundary 'or jurisdiction' given to New Jersey in article 1 of the agreement. The tug seized in that case was in the western half of the Kill van Kull, waters which, by the general boundary line of the first article, were 'set apart to New Jersey,' and it was held that that locality was not affected by the subsequent exception, which gives New York jurisdiction there 'in respect to quarantine laws and laws relating to passengers' only, regulations of a police character, which do not affect the boundary line, or the general jurisdiction of New Jersey. "Upon the principle of the foregoing decision it must be held, therefore, that if it was the intent of the agreement between the two states, which agreement did receive the express assent of Congress, that the waters 23 F.(2d) 107 improperly brought in the district of New Jersey, whereas it should have been instituted in the Southern district of New York. See, also, Devoe Manufacturing Co., Petitioner, 108 U. S. 401, 2 S. Ct. 894, 27 L. Ed. 764. The libel is dismissed upon the plea to the jurisdiction. of the Hudson river opposite Manhattan Island, to the westward of the middle line of the river, should form a part of the state of New York, for all the purposes of government and of judicial jurisdiction, then these waters would also form a part of the Southern district of New York, and be within its jurisdiction. If by that agreement these waters were designed to form a part of the state of New Jersey, and to be subject to its juris- MASSEE & FELTON LUMBER CO. v. BENdiction, then they are within the federal district of New Jersey, and outside the jurisdiction of this court. The eight different articles of the agreement between the states (see 4 Stat. 708) bear the most evident marks of compromise, whereby it was plainly intended to obviate these difficulties, and to secure practical results. It is in the light of these plain objects that the agreement should be interpreted. "These provisions seem to me to show plainly that, as respects the land under water between the middle line of the river and the low-water mark on the western shore, except the docks and vessels fastened thereto or ashore, the state of New Jersey has nothing more than the mere right of property, the naked legal title. She holds this as she might hold the title or exclusive right of property in any other land within the state of New York, and in the same way that any private individual might own it; that is, subject to the 'exclusive jurisdiction' which article 3 of the agreement confers upon the state of New York. The 'waters' of this part of the Hudson, moreover, are by article 3 expressly 'set apart for New York' as unequivocally as the waters of the Kill van Kull, in the Case of Devoe Manuf'g Co., 108 U. S. 401, 2 S. Ct. 894 [27 L. Ed. 764], were held to be 'set apart for New Jersey." The Norma (D. C.) 32 F. 411, 412, 413. From the foregoing it seems clear that within the territory described that is, between low-water mark on the New Jersey side and Manhattan Island-all that to which New Jersey can claim exclusive jurisdiction is her bare legal title to the land under water to the middle of the Hudson, her wharves and docks, and such vessels as are aground on her shore or fastened to her docks. This leaves in New York, in addition to her jurisdiction on her own side of the river, exclusive jurisdiction of and over all the waters above such land stretching westerly from the middle of the Hudson opposite Manhattan Island to the New Jersey low-water mark. And it was, according to the government's own contention, within this area that the seizure was made. Consequently, as I view it, the suit has been ENSON. District Court, S. D. New York. August 10, 1927. 1. Judgment 181-Creditor of bankrupt corporation, whose claim was allowed by trustee without bankrupt's participation, held not entitled to summary judgment against bankrupt's guarantor (Rules of Civil Practice N. Y. rule 113). Creditor of corporation, whose claim was compromised and allowed by corporation's trustee in bankruptcy, without any participation in proceedings by bankrupt, held not entitled to summary judgment against guarantor of corporation's contract under Rules of Civil Practice N. Y. rule 113, in view of allegations in defendant's affidavit, and rule that mere allowance of claim against bankrupt estate does not amount to a judgment against bankrupt, such as would constitute prima facie evidence against guarantor. 2. Judgment 185-Allegations of defendant's affidavit are weighed against proof of plaintiff moving for summary judgment (Rules of Civil Practice N. Y. rule 113). Allegations of defendant's affidavit are to be weighed against prima facie proof of plaintiff in motion for summary judgment under Rules of Civil Practice N. Y. rule 113. 3. Bankruptcy 100(1)-Adjudication based on validity of claim consented to by bankrupt and one creditor does not estop trustee and other creditors from denying claim's validity. An adjudication based on the validity of a claim, at first contested and subsequently consented to by the bankrupt and one creditor, cannot estop the trustee or any other creditor from thereafter denying validity, of claim, though adjudication of bankruptcy is binding in rem. 4. Guaranty 79-Principal and surety even 145(1)-Trustee's allowance of claim without bankrupt's participation is not equivalent to judgment against bankrupt, as regards liability of surety or guarantor. Allowance by trustee of claim against bankrupt estate, without any participation of bankrupt in proceedings, is not effective as a judgment against bankrupt, and therefore does not constitute prima facie evidence of liability of bankrupt's surety or guarantor. 5. Bankruptcy 341-Claim against bankrupt's estate is mere petition to share in fund, and allowance thereof does not determine bankrupt's personal liability. Claim filed against estate in bankruptcy is in no way claim in personam against bankrupt, but is in nature of petition to share in fund of estate held by court for distribution, and allowance of claim is not determination of bankrupt's personal liability. At Law. Action by the Massee & Felton Lumber Company against Grigori Benenson. On plaintiff's motion for summary judgment under Rules of Civil Practice N. Y. rule 113. Motion denied. Root, Clark, Buckner & Howland, of New York City, for plaintiff. Abraham Tulin, of New York City, for defendant. MACK, Circuit Judge. (1) Plaintiff moves for summary judgment under rule 113 of the New York Rules of Civil Practice. The motion must be denied. The questions of law and fact raised are too doubtful and difficult to justify this procedure. The is sues should be tried out fully. Plaintiff sues defendant upon a guaranty of a contract made by a corporation, of which he was president and principal owner, and which some years ago became a voluntary bankrupt. It scheduled an obligation to plaintiff of some $6,000. Plaintiff filed its claim for approximately $36,000. The claim as filed was for merchandise delivered. Objections having been filed thereto, plaintiff authorized the trustee's attorneys to reduce the claim to some $18,000, whereupon the attorneys by letter to the referee in bankruptcy withdrew their objections to the claim and it was allowed. By affidavit filed herein plaintiff now asserts that this reduction was based upon the elimination of certain items, and that the balance was for other specific items alleged to come within defendant's guaranty. Plaintiff claims that this allowance of its claim in bankruptcy is equivalent to a judgment against the bankrupt, and as such at least prima facie evidence against the surety, within Moses v. U. S., 166 U. S. 571, 17 S. Ct. 682, 41 L. Ed. 1119, and the cases therein cited. While the authorities are in conflict as to whether a judgment against the principal debtor is conclusive or merely evidentiary, or inadmissible in evidence as against the surety (see annotation in 40 L. R. A. [N. S.] 698, 723 et seq., 734), I am of course bound by the decision in the Moses Case. It is unnecessary, therefore, to consider the other cases on this point. [2] The allegations, however, in Benenson's affidavit (see especially page 10) are to be weighed as against this prima facie proof, even if the allowance of the claim be consid ered a judgment. This in itself would suffice to defeat the motion. But the interesting legal question remains whether the doctrine in the Moses Case is to be extended to allowance of claim in bankruptcy. In other words, is such an allowance equivalent to a judgment against the bankrupt? As is clearly pointed out in Gratiot County State Bank v. Johnson, 249 U. S. 246, 39 S. Ct. 263, 63 L. Ed. 587, the proceedings in bankruptcy are in their nature in rem, so that an adjudication of bankruptcy, while binding as such, is not admissible, except to establish the fact and date of adjudication, in an action by the trustee against an alleged preferred creditor to recover the preference, and that despite the fact that the alleged preference is the very basis of the adjudication in bankruptcy. The reason is that the alleged preferred creditor, although having a right to be made a party and to contest the adjudication, is not by reason of the allegations in the petition a party to the proceedings, so as to make the findings of the court either evidentiary or conclusive as against him in subsequent proceedings against him in personam. [3] I adhere to the views expressed by me in Re Continental Engine Co., 234 F. 58 (7th C. C. A.), in accordance with Judge Sanborn's dissenting opinion in Ayres v. Cone (C. C. A.) 138 F. 778, that an adjudication based upon the validity of the claim of the petitioning creditor, at first contested, and subsequently consented to by the bankrupt and one creditor, cannot estop the trustee or any other creditor from thereafter denying the validity of such claim, even though the adjudication of bankruptcy itself is binding in rem. [4,5] A claim filed against an estate in bankruptcy is in no sense a claim in personam against the bankrupt. It is in the nature of a petition to share in a fund held by the court for distribution. The allowance of the claim is a determination of the right to share in that fund for the amount allowed, but it is in no sense a determination that the bankrupt is personally liable for that amount. It may well be that, if the bankrupt or a creditor participates in a contest of the claim, the findings of the court basic to the allowance will be findings of fact binding thereafter as between the contesting parties. But if the bankrupt in no manner participates in the proceedings despite a right so to do, if as in this case the allowance is made solely by the action of the trustee, its effect should be limited to proceedings thereafter brought by or against the trustee. For or against him such 23 F.(2d) 109 allowance or disallowance has been held to be res adjudicata. McCullough v. Davenport Sav. Bank (D. C.) 226 F. 309; Adcock v. New Crystal Ice Co., 144 Tenn. 512, 234 S. W. 336; Clendening v. Red River Bank, 12 N. D. 51, 94 N. W. 901. The importance of this principle is well illustrated in the case decided by me many years ago in the circuit court of Cook county, Illinois, and affirmed by the Supreme Court of Illinois. Hynes v. Illinois Trust & Savings Bank, 126 Ill. App. 409; Id., 226 III. 95, 80 N. E. 753, 10 L. R. A. (N. S.) 472, and the early English bankruptcy cases therein cited; Ex parte Deey, 2 Cox, Ch. C. 422; Ex parte Rogers, Buck's Bankruptcy Rep. 490. In these bankruptcy cases the purchaser for value before maturity of negotiable paper, although having a perfectly good claim in personam against the bankrupt, was held subject to defenses which existed against the original payee at the date of the commission of the act of bankruptcy. In England the proceedings relate back to that date. The participation in the fund in the bankruptcy court is determined as of that date. The holder of these notes at that date was subject to defenses. Therefore, as the courts held, a subsequent holder of the note could get no better right in and to the funds than the holder at that date had, even though as a bona fide purchaser he could get a clear right against the bankrupt in personam, and thus be enabled to recover if the bankrupt were not discharged in bankruptcy and if thereafter he came into funds. The Hynes Case laid down a similar doctrine in respect to the funds sequestered by a court of equity under a creditors' bill. be admissible in evidence in subsequent proceedings in personam against the defendant therein not served within the jurisdiction. Salmon Falls Mfg. Co. v. Midland Tire & Rubber Co., 285 F. 214 (6C. C. A.); Cheshire Nat. Bank v. Jaynes, 224 Mass. 14, 112 N. E. 500. On the whole, I am inclined strongly to the view that the allowance of the claim without personal participation of the bankrupt cannot be deemed to be a judgment within the Moses Case. See Ballantine v. Fenn, 84 Vt. 117, 78 A. 713, 40 L. R. A. (N. S.) 698. This case, while the nearest in point, is distinguishable, in that the Vermont court, contrary to the Moses Case, would not deem a judgment against the debtor admissible in evidence against the surety. 1. Courts 262 (2) Legal remedy in state court, existing or lost, is no barrier to appeal to equity in federal court, wherein plaintiff has no legal remedy. That plaintiff had sufficient legal remedy in state courts, but neglected to exercise it, was no barrier to suit in equity in federal court, since legal remedy in state court, existing or lost, is no barrier to appeal to equity in federal court, where plaintiff has no legal remedy. 2. Injunction 11-Cause of action, warranting enjoining of individuals from committing trespasses by and with void judgment, arises when trespass is threatened or committed. Cause of action, warranting injunction enjoining individuals from committing trespasses by means of and with void judgment, arises when trespass is threatened or committed. 3. Injunction113-Laches, barring suit to enjoin individuals from committing trespasses by and with void judgment, would date only from trespass. In other branches of law a similar principle prevails. While facts prerequisite to the granting of administration on personal property are res adjudicata as between contesting parties in a subsequent ejectment suit between the same parties (Blackburn v. Crawford's Lessee, 3 Wall. 175, 18 L. Ed. 186), an adjudication of domicile in probate proceedings is not conclusive, or of any evidentiary value, as between one of the parties to such proceedings and a claimant brought in merely by general publication, in a later pro- 4. Courts 40-Judgment 577(2)-Pro bate proceeding in another jurisdiction (Overby v. Gordon, 177 U. S. 214, 20 S. Ct. 603, 44 L. Ed. 741). And in an attachment suit, in which the owner appears specially to defend his rights to the property attached as against the plaintiff's claim, but without submitting himself in personam in the case, a judgment therein for the plaintiff would not Laches, as barring suit to enjoin individuals from committing trespasses by means of and with void judgment, would date only from tres. pass. ceedings in tribunal without jurisdiction are void, and aggrieved party need not seek review, but at any stage may treat them as null, and defend against trespass by their use. Proceedings in a tribunal without jurisdiction of person or matter are void, and aggrieved party need not seek remedy by review, but at any stage may treat them as null, and defend against trespass by and with their use thereafter. 5. Courts 508(2) -State Industrial Accldent Commission is judicial tribunal, whose proceedings federal court cannot stay; "pro. ceedings in any court" (28 USCA § 379). State Industrial Accident Commission is judicial tribunal, and its proceedings are "proceedings in any court" of state which federal court cannot stay, under Rev. St. § 720 (28 USCA § 379; Comp. St. § 1242). [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proceeding.] In Equity. Suit by the North Pacific Steamship Company against the Industrial Section 720, R. S. U. S. (28 USCA § 379; Comp. St. § 1242). And as there is no dispute within the jurisdiction of this court, so far as the commission is concerned, section 37, Judicial Code (28 USCA § 80), directs the suit against it be dismissed. Note further the commission's activities are ended, so far as this void judgment is concerned, and nothing is really charged against it-no relief due against it. Accident Commission and others. Decision NORTH PACIFIC STEAMSHIP COMPANY in accordance with opinion. Glensor & Clewe, of San Francisco, Cal., for plaintiff. Christopher M. Bradley, of San Francisco, Cal., for defendant Commission. Herbert N. Ellis, of Los Angeles, Cal., for defendant Soley. BOURQUIN, District Judge. This suit seeks to enjoin enforcement of a money judgment void on its face, for that enforcement by defendant Soley by means of the state's judicial instrumentalities will deprive plaintiff of property without due process of law, contrary to the Fourteenth Amendment. Defendants' motions to dismiss are upon the grounds that plaintiff had a sufficient legal remedy in the state courts, but neglected to exercise it. [1-3] But plaintiff has no legal remedy in this court, and a legal remedy in a state court, existing or lost, is no barrier to an appeal to equity herein. Nevada-California, etc., Co. v. Hamilton (D. C.) 235 F. 339, and cases cited. Furthermore, it is to be noted that this suit is not to annul or in any wise operate upon the void judgment, but is to enjoin individuals from committing trespasses by means of and with said judgment. The cause of action arises when the trespass is threatened or committed, and it is such trespasses that will be enjoined. Laches would date only from the trespass. [4, 5] Still further, proceedings in a tribunal without jurisdiction of person or matter are void, and the aggrieved party need not seek a remedy by review, but at any stage may treat them as null, and defend against trespass by and with their use thereafter. Simon v. Ry. Co., 236 U. S. 125, 35 S. Ct. 255, 59 L. Ed. 492. The motions are denied. However, the court of its own motion will dismiss the suit as to the commission. It is a judicial tribunal, and its proceedings are "proceedings in any court," which this court cannot stay. v. BOLGER et al. |