The opinion of the court was delivered by: KALODNER
Plaintiff filed a petition for a declaratory judgment, seeking adjudication by this court as to the title to certain dividends declared by a bankrupt estate.
The defendants Rothensies filed a motion to dismiss questioning (1) the jurisdiction of the court over the subject matter of the petition and (2) sufficiency of the petition.
The petition for the declaratory judgment discloses:
The plaintiff was in June, 1938, an employee of the defendants J. Michalowski and Charles Jasecki, and a member of the Amalgamated Clothing Workers of America, a labor union, hereinafter called the Union. (Pet. par. 1)
The defendants Michalowski and Jasecki (trading as United Coat Shop) were for some time prior to June, 1938, engaged to supervise various operations on garments owned by the manufacturers, Harry Steinberg and Louis Steinberg (trading as Steinberg Brothers), since declared bankrupt by this court in cause No. 20243. (Pet. par. 2)
For some time prior to June 1938, Messrs. Steinberg failed to pay the defendants Michalowski and Jasecki for the operations on its garments. (Par. 2) The latter, in turn, failed to pay their employees' wages and became indebted for wages in the sum of $2,680.58, including the sum of $113.39 due the plaintiff. (Par. 2)
In June, 1938, the defendants Michalowski and Jasecki executed a writing with the Union by which the former assigned to the Union all their rights in any claim against the bankrupt estate of the Messrs. Steinberg, as trustee for all the unpaid wage-earners of defendants Michalowski and Jasecki. (Par. 3, Ex. 1)
On June 6, 1938, the defendant Herman Toll filed a proof of priority claim for wages as the assignee of such wages against the aforesaid bankrupt estate on behalf of the defendants Michalowski and Jasecki, as their attorney, which claim was allowed as a general claim. (Par. 4, Ex. 2)
The Union, as trustee for the plaintiff and other unpaid employees of the defendants Michalowski and Jasecki, filed a petition for leave to intervene in the bankruptcy proceedings on their behalf, to prove their claims against the bankrupt estate of Messrs. Steinberg, to protect the claims against that estate assigned as aforesaid. (Pars. 5, 6)
On or about March 23, 1939, three dividends were paid on the bankrupt estate of the Messrs. Steinberg, of which the defendant Toll received a total of $246.24 in three checks. While the defendant Toll retained the dividend checks, intending to transmit them to Kraus and Weyl (attorneys for the Union) "as the sum so retained belonged to the plaintiff and other wage-earners," he was served by defendant W.J. Rothensies, United States Collector of Internal Revenue, with a notice of lien, levy, and warrant for distraint because of the indebtedness of defendants Michalowski and Jasecki to the United States of America for taxes, penalties, and interest amounting to $1,059.94. (Pars. 8, 9)
Defendant Toll allegedly admits that the dividends belong to the Union as the plaintiff's trustee, but has not paid over the dividends because he is unable to decide to whom they should be paid. (Par. 10)
The petition alleges the possibility of the declaration of additional dividends in the future to be paid to defendant Toll. (Par. 11)
The plaintiff prays for a declaratory judgment adjudicating which party is legally entitled to the dividends already declared and those hereafter to be declared on the estate of the Messrs. Steinberg.
As to the defendant Rothensies first objection -- that the court has no jurisdiction over the subject matter of the petition:
This objection is based on the premise that in the instant proceeding the plaintiff is seeking to enjoin the collection of a federal tax and that such a suit is prohibited by virtue of Section 3653 (a) of the Internal Revenue Code, 26 U.S.C.A. § 3653(a), which provides that: "Except as provided in sections 272 (a), 871 (a) and 1012 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court."