United States Court of Appeals Second Circuit.: No. 228, Docket 27279

299 F.
2d 212
ASSOCIATION FOR THE PRESERVATION OF FREEDOM

OF CHOICE, INC.,
and Association for the Preservation of Freedom of
Choice Legal Educational Fund, Inc.,
Plaintiffs-Appellants,
v.
Caroline K. SIMON, Individually and as Secretary of State,
New York State, Defendant-Appellee.
No. 228, Docket 27279.
United States Court of Appeals Second Circuit.

Argued Jan. 19, 1962.
Decided Feb. 6, 1962.
Alfred Avins, New York City, for plaintiffs-appellants.

Irving L. Rollins, Asst. Atty. Gen. (Samuel A. Hirshowitz, First Asst.
Atty. Gen. and Louis J. Lefkowitz, Atty. Gen., of the State of New York,
on the brief), for defendant-appellee.
Before MEDINA, MOORE and SMITH, Circuit Judges.
PER CURIAM.
The complaint purported to allege three claims for relief, and it was dismissed
in its entirety by Judge Murphy on defendant's motion framed in a double
aspect, for failure to state a claim for relief pursuant to Rule 12(b) (6), and for
summary judgment under Rule 56(b) of the Federal Rules of Civil Procedure,
28 U.S.C. Plaintiff's appeal from the orders granting defendant's motion and
denying plaintiffs' cross-motion for summary judgment. Jurisdiction of the
District Court is asserted under 28 U.S.C. 1331 and 1332.
* Appellant Association for the Preservation of Freedom of Choice, Inc. is a

corporation organized under the laws of the District of Columbia; appellee is
the Secretary of State of the State of New York. The first claim for relief
alleged in the complaint is based upon the assertion that, as the result of a series
of decisions of the New York State courts and the refusal of appellee to file
appellant's certificate of incorporation without the approval of a Supreme Court
Justice, as required by Section 10 of the New York Membership Corporations
Law, and Section 211(2) of the New York General Corporation Law appellant's
rights under the Fourteenth Amendment of the United States Constitution have
been infringed. Reference is made in the complaint to the prior refusal of
appellee to file the certificate of incorporation of a domestic corporation of the
same name, also alleged to have been due to the failure of that corporation to
obtain the required approval of a Supreme Court Justice. We find it not
necessary to describe in detail the numerous and seemingly confusing and
complicated proceedings in the New York State courts, and the opinions and
memoranda of these courts referred to in the complaint. It will suffice to say
that, by the decision of the New York Court of Appeals of two consolidated
appeals, Association for the Preservation of Freedom of Choice, Inc. v. Shapiro,
1961, 9 N.Y.2d 376, 214 N.Y.S.2d 388, 174 N.E.2d 487, Section 10 of the New
York Membership Corporations Law and Section 211(2) of the New York
General Corporation Law were construed, and the matter was remitted to the
Appellee Division, Second Department, for further proceedings. Instead of
pursuing the matter further in the Appellate Division, Second Department,
appellant then commenced, in the United States District Court for the Southern
District of New York, the action now before us.
3
Not only is it clear that the New York courts have not up to the present time,
and since the matter was remitted to the Appellate Division, Second
Department, applied the New York corporation laws to appellant in a manner
infringing its constitutional rights under the Fourteenth Amendment, but it is
also clear that the construction of these statutory provisions by the New York
Court of Appeals is such as to leave no basis for a claim that these laws as thus
construed are unconstitutional. Consequently, Judge Murphy was correct when
he ruled that there is no substantial federal question in this phase of the case.
Another party plaintiff, the Association for the Preservation of Freedom of

Choice Legal Educational Fund, Inc., also appeals from the order granting the
judgment of dismissal. It does not appear that the Foundation was ever a party
to any of the New York litigation above referred to, or that appellee ever took
any action with reference to the filing of the certificate of incorporation of the
Foundation. But we shall assume, arguendo, that, as alleged in the complaint,
the same action 'would be' taken with respect to the Foundation as was taken
with respect to the other appellant, not only because of the failure to obtain the
approval of a Supreme Court Justice, but also for failure to obtain the approval
of the Education Commissioner of New York, as required by Section 11(2) of
the New York Membership Corporations Law. We reach the same result,
namely that there is no substantial federal question in this phase of the case,
with respect to appellant Foundation and for the same reasons as those briefly
stated in the foregoing part of this opinion concerning the other appellant.
II
5
The second claim for relief is based upon an alleged deprivation of 'rights * * *
secured by the Constitution.' 42 U.S.C.A. 1983. The allegations appear to
combine the refusal of appellee to file the certificates of incorporation without
the approval of a Supreme Court Justice, already discussed, with an alleged
libel that is realleged separately as the third claim for relief. With respect to the
refusals, the allegations do no more than state that appellee performed her
duties as Secretary of State of New York as required by the letter of the statutes,
and we have already held these statutes, as construed by the New York Court of
Appelas, to be clearly constitutional. Consequently, the allegations set forth in
the second claim for relief are patently insufficient. The Civil Rights Act, and
in particular 42 U.S.C.A. 1983, was never intended to be held applicable to the
type of situation here presented. So much of the alleged second claim for relief
as relates to the alleged libel has no connection with any federally protected
right but solely with a right arising out of state law.
III
The third claim for relief is for an alleged libel. Jurisdiction here is based solely
on diversity. The alleged libelous statements were first published in New York.
Judge Murphy held this claim to be time barred, by virtue of the one-year
period of limitations provided in New York City Practice Act, 51, which is
measured from the time of first publication. Gregoire v. G. P. Putnam's Sons,
1948, 298 N.Y. 119, 81 N.E.2d 45; Cassius v. Mortimer, S.D.N.Y., 1957, 161
F.Supp. 74; Barry v. Beacon Publications Corporations, S.D.N.Y., 1958, 169
F.Supp. 437; National Cancer Hospital of America v. Confidential, Inc., Sup.
Ct. N.Y. County, 1956, 151 N.Y.S.2d 443. Were New York forced to recognize
as a separate claim for relief each subsequent publication in another
jurisdiction, the policy of its Statute of Limitations and single publication rule
'to spare the courts from litigation of stale claims,' Gregoire v. G. P. Putnam's
Sons, supra, 298 N.Y. at p. 123, 81 N.E.2d at p. 48 would be swept away. We
are not here concerned with a tort which arose full-born in a sister state. Only
the subsequent publication was in a sister state. Gregoire on its facts presented
the very issue now before this Court, but the question certified on appeal was
limited to the following:
"Do sales from stock by a book publisher * * * constitute republications of the

libelous matter, so as to give rise to new causes of action within the meaning of
Section 51, subdivision 3, of the Civil Practice Act * * *." 298 N.Y. at p. 122,
81 N.E.2d at p. 46.
Although the New York Court of Appeals did not reach the choice of law
problem posed by multi-state libels, the rationale of the case dictates the
application of forum law to foreign claims for relief where the first publication
was in New York. Cassius v. Mortimer, supra. In the present era of mass
communication a contrary decision would render the New York single
publication rule a complete nullity.
Statutes of Limitations are traditionally considered to be procedural for

conflicts purposes, and the forum state applies its own period of limitations to
foreign claims for relief. In Wells v. Simonds Abrasive Co., 1953, 345 U.S.
514, 73 S.Ct. 856, 97 L.Ed. 1211, the Supreme Court reaffirmed the long
established principle that application of the Statute of Limitations of the forum
state to a foreign substantive right does not constitute a denial of the full faith
and credit required by 28 U.S.C. 1738. Thus, in New York State courts the
action would properly be barred. And a Federal District Court sitting in New
York, whose jurisdiction rests solely on diversity, should comply with this state
rule for the state rule is bound up with rights and obligations of the parties and
its application does not disrupt the procedures of the federal system. Otherwise,
the outcome would likely depend on the courthouse where suit is brought. See
Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 1958, 356 U.S. 525, 537538, 78 S.Ct. 893, 2 L.Ed.2d 953; Bernhardt v. Polygraphic Co., 1956, 350 U.S.
198, 76 S.Ct. 273, 100 L.Ed. 199; Guaranty Trust Co. of New York v. York,
1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079.
10
We do not find it necessary to discuss any of the other numerous questions of

law argued in the briefs.
11
Affirmed.

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299 F.

ASSOCIATION FOR THE PRESERVATION OF FREEDOM

United States Court of Appeals Second Circuit.

Alfred Avins, New York City, for plaintiffs-appellants.

* Appellant Association for the Preservation of Freedom of Choice, Inc. is a

Another party plaintiff, the Association for the Preservation of Freedom of

"Do sales from stock by a book publisher * * * constitute republications of the

Statutes of Limitations are traditionally considered to be procedural for

We do not find it necessary to discuss any of the other numerous questions of

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