Kemp v. Rubin Brief of Defendant in Support of Motion to Dismiss the Complaint

    ^aprrntr (tort af tlfr af Hnu fark
Queens County

H arold F. K e m p , S arah M. K e m p , J o h n  H . L htz 
a n d  I ren e  L utz , on  b eh a lf  o f th em se lv es  an d  
a ll  o th e rs  eq u a lly  in te re s te d ,

Plaintiffs,
against

S o ph ie  R u b in  a n d  S am uel R ichardson,

Defendants.

BRIEF OF DEFENDANT SAMUEL RICHARD- 
SON IN SUPPORT OF MOTION TO 

DISMISS THE COMPLAINT.

A ndrew  D . W einberger ,
Attorney for Defendant Samuel Richardson, 

No. 67 West 44th Street,
New York 18, N. Y,

104 Grosby P ress, I nc., 30 F e rry  S t„  N . Y. C.—BEekm an—S-2336-7-8



Supreme Qlmtrt of ft|e S>lat£ of 2mu fork
Queens County

+
H abold F. K e m p , S abah M. K e m p , J ohn  H. L utz 

and I bene L u tz , on behalf of themselves and 
all others equally interested,

Plaintiffs,
against

S o ph ie  R ubin  a n d  S am uel R ichabdson,

Defendants.
-------------------+------------------

BRIEF OF DEFENDANT SAMUEL RICHARD- 
SON IN SUPPORT OF MOTION TO 

DISMISS THE COMPLAINT.

The Parties

The plaintiffs and the defendant Rubin are 
residents in the area known as Addisleigh Park 
in St. Albans, Queens County. The defendant 
Samuel Richardson owns a lot of vacant land in 
Addisleigh Park immediately adjacent to the 
property in suit. The plaintiffs Kemp and the 
defendant Rubin both executed one of the .re­
strictive covenants, dated January 10, 1939, an­
nexed to the complaint. The plaintiffs Lutz are 
not parties to that covenant. They, together with 
third parties, executed the second restrictive 
covenant annexed to the complaint. Neither of 
the plaintiffs Kemp nor the defendant Rubin is 
a party to that covenant. The defendant Richard­
son is not a party to either of the covenants, nor 
is his vacant land subject to either of them.



2

T he C om plaint in  Substance

That the covenants described above were ex­
ecuted, the ownership of houses in Addisleigh 
Park by the plaintiffs and the defendant Eubin 
and that she contracted to sell to the defendant 
Eichardson 112-03 177 Street, St. Albans.

That the contract and the contemplated convey­
ance would be in violation of both the covenants.

That the realty of the plaintiffs are private 
dwellings of great value and that their rental and 
sales value depends wholly upon the exclusion 
from Addisleigh Park of “ Negroes or persons of 
the Negro race or blood or descent” .

That the plaintiffs have no adequate .remedy at 
law, and will suffer great and unascertainable pe­
cuniary loss if they do not secure the injunction.

T he Answ er o f  the  D efendan t Richardson  
in  Substance

A.
Admits the execution of the first of the two 

covenants annexed to the complaint between plain­
tiffs Kemp and the defendant Eubin.

Denies sufficient knowledge or information as to 
the allegations concerning the ownership by the 
plaintiffs.

Admits that the defendants Eichardson and 
Eubin entered into a contract of sale for 112-03 
177th Street, St. Albans, N. Y., and that the de­
fendant Eichardson is of the Negro race.

Denies that the houses of the plaintiffs are of 
great value, and that their .rental and sales value 
depends wholly upon the exclusion from Addis­
leigh Park of Negroes.

Denies that the plaintiffs will suffer great and 
unascertainable pecuniary loss if there is a con­



3

veyance from the defendant Rubin to the defend­
ant Richardson and that plaintiffs have no ade­
quate remedy at law against the defendant Rubin.

B. Affirmative Defenses
That this Court may not enforce the covenant 

by reason of the prohibitions contained in the 14th 
Amendment to the Federal Constitution and the 
laws enacted thereunder.

That the covenant is void and judicial enforce­
ment is prohibited by existing treaties between 
the United States and other nations.

That the covenant is both void and may not be 
judicially enforced by reason of the public policy 
of the United States and New York State.

That judicial enforcement of the covenant is 
prohibited by Article I, Section 11 of the Con­
stitution of the State of New York.

That the covenant is void as constituting unlaw­
ful restraint on alienation of real property.

The Sociological Background o f the Citizens o f 
the State o f New York and Housing Conditions 
Pertinen t to  This Issue B efore a Court o f Equity

It is proper for equity to inquire into the so­
ciological conditions which underlie this suit.

One of the basic needs of Negroes in this city 
is additional housing. This is not a temporary 
condition brought about by the general present 
housing shortage, but was true even in the late 
1930’s, during the years of the real estate de­
pression when foreclosures and vacant houses 
were commonplace. In fact, it was during that 
period, 1939, that the covenants in suit were exe­
cuted immediately following the first sales in 
Addisleigh Park to Negroes.



4

In West Harlem, a section comprising l/16th 
of the total of Manhattan’s area, more than l/10th 
of the borough’s population is crowded. On one 
Harlem city block (141st Street, between Lenox 
and 7th Avenues) there are housed 3,871 people. 
This is the highest dwelling density in any com­
parable area anywhere in the world (The Urban 
Negro: Focus of the Housing Crisis—Real Es­
tate Reporter—October, 1945, page 12, citing the 
Mayor’s Committee on City Planning). Com­
menting upon this, Edwin Embree in his book, 
“ Brown Americans” (The Viking Press—1943), 
said at page 34:

“ Comparable concentration for the entire 
population would result in all of the people 
in the United States living in one half of New 
York City.”

This is aggravated by the fact that rentals in 
all Negro neighborhoods are substantially higher 
than rentals for comparable accommodations in 
white communities.

In the recent scholarly and authoritative trea­
tise, Myrdal’s An American Dilemna, sponsored 
by the Carnegie Corporation, it is said at Vol. 1, 
page 379:

“ We feel inclined to believe that rents are 
higher, on the average, in Negro than in 
white-occupied dwelling units even when size 
and quality are equal. Most housing experts 
and real estate people who have had experi­
ence with Negro housing have made state­
ments to this effect. Not only does there 
seem to be consensus on the matter among 
those who have studied the Negro housing 
problem, but there is also a good logical rea­
son for it: housing segregation.”



5

There is presently a continuous inmigratiou 
of Negroes to New York City from the South. 
They are influenced by both the desire to live in 
the better economic status of the North, and also 
in an atmosphere free from lynchings, depriva­
tion of the franchise, discrimination and segre­
gation.

It is common knowledge that the already over­
taxed facilities of greater New York are hope­
lessly inadequate. The situation is substantially 
more acute for Negroes than for white persons. 
Aside from the legal nnsoundness and the social 
viciousness of restrictive covenants, one must 
consider the economic burden that it places upon 
the Negro by forcing him to pay higher rents and 
occupy inadequate accommodations. Concerning 
this, Myrdal, at Yol. 1, page 379, said:

“ Particularly when the Negro population is 
increasing in a city, it is hard to see how this 
factor can fail to make Negro rents increase 
to an even greater extent than would have 
been the case if Negroes had been free to seek 
accommodations wherever in the city they 
could afford to pay the rent. The fact that 
they are not wanted where they have not 
already been accepted must put them in an 
extremely disadvantaged position in any ques­
tion of renting or of buying a house.”

Queens County with its large tracts of unim­
proved property has for many years been an es­
cape and release from crowded Manhattan for 
scores of both white and colored citizens. Queens 
County, even more than any of the other suburban 
areas of New York City, should afford similar 
opportunity to Negroes for home ownership, 
which is well-nigh impossible for anyone in Man­



6

hattan. Queens County lias taken thousands of 
white persons from the undesirable residential 
conditions of Manhattan (and we include the dark, 
sunless Park Avenue apartments in this category) 
and as a matter of both sound law and equity, the 
Negro may not be deprived of the same ele­
mentary privilege of a human being. Even in 
those instances when suburban home ownership is 
possible for a Negro, he again pays more for com­
parable accommodations than his white equal.

The November, 1945 issue of the Building Re­
porter and Realty News, in its second installment 
of its survey The Urban Negro: Focus of the 
Housing Crisis, says at page 11:

“ This view was supported by other local 
spokesmen, who reported Queens housing is 
sold to Negroes only when values have al­
ready begun to decline. Negroes, in search 
of housing, must take what they can get, so, 
at somewhat inflated prices, they buy these 
properties.”

As there has been no decision on the validity of 
restrictive covenants nor on the propriety of their 
enforcement by judicial decree in any appellate 
court of New York State, nor by the United States 
Supreme Court on an appeal from any state court, 
this Court has the important privilege and duty 
of determination of the mode of life of a good 
part of the 13,000,000 Negroes in the United States 
and millions more not colored. Eestrictive cov­
enants are not confined to Negroes alone. There 
are many against Catholics, Jews, Chinese, Mexi­
cans, Indians, Turks, Armenians, Italians and 
others. It is not difficult to envisage a day when 
no member of any racial or religious minority 
may live anywhere in the United States.



7

P O I N T  I

Judicial enforcement of the racial restrictive 
agreement in suit is prohibited by the 14th 
amendment of the Constitution of the United 
States.

This action seeks to enlist the aid of the ju­
dicial arm of the government of the State of New 
York in enforcing a restrictive land covenant 
which prohibits ownership or occupancy of desig­
nated lands in Addisleigh Park, St. Albans, by any 
Negro.

In considering the prohibitions and guarantees 
contained in the 14th Amendment to the United 
States Constitution regulating state action and 
their application to the case at bar, it is neces­
sary to primarily determine whether the State 
of New York o.r any of its political subdivisions 
can, by legislative enactment, accomplish the ob­
jective sought by this action.

In making this inquiry, let it be hypothesized 
for the moment that, instead of the action now 
before this Court, the plaintiffs had successfully 
petitioned the state or a local legislative body for 
special enabling legislation which had accom­
plished the objective sought by this action and 
had by statute, secured the identical result that 
would follow from the decree the plaintiffs seek. 
In accomplishing this, plaintiffs would have ob­
tained an affirmative act by the State of New York 
or a political subdivision thereof, acting in its 
legislative capacity, countenancing a racially seg­
regated neighborhood such as Addisleigh Park 
along the lines now constituted.

A discussion of such legislation is not idle 
because the possibility of its ever coming into



8

being is too conjectural o.r speculative to be per­
tinent to tbe issue since the fact is that in three 
instances such legislation did achieve reality. In 
each case, the Supreme Court of the United States 
evaluated such legislation in terms of its relation­
ship to the 14th Amendment. Although the 
laws differed in manner of operation, the signifi­
cant point is that they represented an attempt 
by a state through its legislative body to legalize 
residential segregation by governmental sanction. 
It is of direct and material interest to understand 
the rationale underlying the invalidation of these 
laws by the Supreme Court.

In Buchanan v. Warley, 245 U. S. 60, marking 
the first such case where racial residential segre­
gation was clothed with legislative approval, the 
Supreme Court was called upon to pass upon the 
validity of a city ordinance in the State of Ken­
tucky which forbade any white or Negro person 
from moving into and occupying as a residence, 
any house in a city block in which the majority of 
the houses we,re already occupied by persons of 
the opposite race. Thus, on its face, the statute 
was seemingly susceptible of reciprocal applica­
tion, but the Supreme Court stated nevertheless:

“ Colored persons are citizens of the United 
States and have the right to purchase prop­
erty and enjoy and use the same without laws 
discriminating against them solely on account 
of color. These enactments (laws enacted to 
effectuate the 14th Amendment) did not deal 
with the social rights of men, but with those 
fundamental rights in property which it was 
intended to secure upon the same terms to 
citizens of every race and color. The Four­
teenth Amendment and those statutes enacted 
in furtherance of its purpose operate to qual­



9

ify and entitle a colored man to acquire prop­
erty without state legislation discriminating 
against him solely because of color. ’ ’

In its reference to “ laws enacted to effectuate 
the 14th Amendment” the Court had reference in 
particular to Title 8, Section 42 of the United 
States Code which has been valid law of the 
United States since 1866. It reads:

“ All citizens of the United States shall have 
the same right in every State and Territory, 
as is enjoyed by white citizens thereof, to 
inherit, purchase, lease, sell, hold and convey 
real and personal property.”

This statute, together with the 14th Amend­
ment, led to the following well-reasoned holding:

“ We think this attempt to prevent aliena­
tion of the property in question to a person 
of color was not a legitimate exercise of the 
police power of the State, and is in direct 
violation of the fundamental law enacted in 
the Fourteenth Amendment of the Constitu­
tion preventing State interference with prop­
erty rights except by due process of law. 
That being the case the ordinance cannot 
stand.” (Buchanan v. Warley, supra)

The Court in response to the contention that 
the ordinance was justified by a desire to “ pro­
tect” property values revealed the fallaciousness 
of such reasoning by pointing out, that:

“ * # * property may be acquired by unde­
sirable white neighbors or put to disagree­
able though lawful uses with like results.” 
[Buchanan v. Warley, supra)



10

Subsequently, in Harmon v. Tyler, 273 U. S. 
668, legislation permitting the adopting of racial 
residential segregation by private action was 
passed in the State of Louisiana through a law 
forbidding whites or Negroes from occupying a 
residence in any portion of the City of New 
Orleans except on written consent of the majority 
of the persons of the opposite race inhabiting 
such community or portion of the city. This or­
dinance thus extended governmental sanction to 
racial segregation by community or neighbor­
hood agreement.

In reliance on this law, suit was brought by a 
white owner of residential property to enjoin an­
other white owner in the community from leasing 
his residence to a Negro tenant. The Supreme 
Court, adhering to Buchanan v. Warley, supra, 
again declared legislative interference with resi­
dential patterns along lines of color to be viola­
tive of the 14th Amendment’s guarantees and, as 
such, unconstitutional.

The Supreme Court has unequivocally ex­
pressed its intolerance of any legislative attempt 
by the states to regulate residential segregation. 
In the last of these cases (City of Richmond v. 
Deans, 281 U. S. 704), the Court without opinion 
simply affirmed the decree voiding the ordinance.

It is a well-known fact that Negroes do not 
make restrictive covenants, nor are they ever 
likely to adopt such undemocratic practices. The 
same is true of lawsuits based on restrictive cove­
nants—it is in every instance a white person who 
institutes the action. Applying these obvious 
facts to the legislation considered above, it can 
readily be understood that the apparent reci­
procity of use is as empty a concept as a law is 
capable of producing under the guise of equality.



11

The laws held unconstitutional would have been 
little else than tools in the hands of citizens of 
the white race exclusively, to be used against citi­
zens of the Negro race whenever any member of 
the latter sought to escape from unsatisfactory 
housing conditions to an improved home that 
was otherwise available. Such is, of a certainty, 
not ‘ ‘ equal protection of the laws ’ ’.

The same inequality is manifest if the inquiry 
as to equality of protection is conducted solely on 
a basis of strict legal reasoning apart from the 
facts as they incontrovertibly do exist.

In this democracy, racial segregation by states 
insofar as public accommodations and services 
are concerned has not, as yet, been declared by 
the Supreme Court to be a denial of equal pro­
tection of the laws. This is the case notwith­
standing the glaring inequalities of financial ap­
propriations to Negro as contrasted with white 
schools, hospitals and other community services 
in the states adhering to the “ separate but equal’’ 
doctrine. Theoretically, such equality of facilities 
is attainable in that equal facilities for both races 
could in fact be provided. However, when one 
considers land, even the theoretical possibility of 
equality ceases by reason of the well-established 
equitable maxim that each lot of land is unique 
and cannot be either duplicated or equalled. This 
maxim is not a mere legal fiction, but a recognition 
of fact.

Viewed in light of this traditional equitable 
principle, any state or governmental enactment 
which, in its operation, enables a white person to 
own and occupy a particular piece of realty while 
denying a Negro citizen this fundamental right, 
is, of necessity, a denial of the equal rights which 
the 14th Amendment and the laws enacted in pur­



12

suance of it rigidly safeguard. No other conclu­
sion is logically possible.

It is, therefore, evident that had the plaintiffs 
in this action secured the legislative sanction 
hypothesized previously to secure their racial 
residential segregation objective, the legislation 
whether it was direct, as found in Buchanan v. 
Warley, supra, or extended a sort of local option, 
as in Harmon v. Tyler, supra, would be unques­
tionably repugnant to the 14th Amendment and, 
as such, void.

Having seen that discriminatory acts of the 
legislative arm of government constitute state 
action in violation of the guarantees contained in 
the 14th Amendment, it is pertinent to further in­
quire whether state action of a discriminatory na­
ture is capable of stemming from the acts, de­
crees and orders of the judicial arm of govern­
ment. If the answer be in the affirmative, then 
the Courts of a state are subject to the same limi­
tations imposed on the legislative arm.

The principle that judicial enforcement, or 
court order, constitutes action by the state is 
not without abundant authority.

In Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 
the Supreme Court reversed the decision of the 
Supreme Court of Missouri, stating:

“ If the result above stated were attained by 
an exercise of the state’s legislative power, 
the transgression of the due process clause 
of the 14th Amendment would be obvious * * # 
The federal guarantee of due process extends 
to state action through the judicial as well as 
through the legislative, executive or adminis­
trative branch of government.” (Italics 
added)



13

So also in Raymond v. Chicago Traction Co., 
207 U. S. 20, 36 where the Supreme Court states:

“ The provisions of the 14th Amendment are 
not confined to the action of the state through 
its legislature, or through the executive or 
judicial authority. Those provisions relate 
to and cover all the instrumentalities by 
which the state acts.”

Judicial acts constituting state action of a for­
bidden type may be substantive or procedural in 
nature. An examination of the following cases 
is conclusive of the fact that offending judicial 
acts in both categories are prohibited equally.

First in the procedural sphere is Powell v. 
Alabama, 287 U. S. 45, where the Supreme Court 
reversed a conviction upheld by the highest court 
of the State of Alabama as being state action re­
pugnant to the 14th Amendment, where it was 
shown that the trial court failed to adequately 
safeguard an accused person’s rights.

Likewise in Brinkerhoff-Faris Co. v. Hill, 281 
TJ. S. 673, where the Supreme Court set aside the 
action of the State of Missouri acting through its 
courts, saying:

“ We are of the opinion that the judgment of 
the Supreme Court of Missouri must be re­
versed because it has denied to the plaintiff 
due process of law—using that term in its 
primary sense of an opportunity to be heard 
and defend its substantive rights.”

Turning to the substantive field, one finds the 
rule is no different in application. As early as 
1880 the Supreme Court in Ex Parte Virginia, 
100 U. S. 339, cited by nearly every term of the



14

Court as the basic case on state action by courts, 
held that the limitation on state action applies to 
the exercise of the decisional powers of state 
courts as well as to laws enacted by a state leg­
islature. The Court said at page 347:

“ Whoever by virtue of public position under 
a state government deprives another of prop­
erty, life or liberty, without due process of 
law, or denies or takes away the equal pro­
tection of the law violates the constitutional 
inhibition; and as he acts in the name and for 
the state is clothed with the state’s power, his 
act is that of the state. This must be so, or, 
as we have often said, the constitutional pro­
hibition has no meaning, and the state has 
clothed one of its agents with power to annul 
or evade it.”

From the foregoing, it is evident that there is 
no differentiation between the Equal Protection 
Clause and the Due Process Clause in determin­
ing what is state action.

So also in Twining v. New Jersey, 211 U. S. 78, 
where the court said:

“ The judicial act of the highest court of the 
state in authoritatively construing and en­
forcing its laws is the act of the state.”

This last raises the question whether, in con­
struing not only statutes, but the common law as 
well of a state, a court is acting for the state.

In Cantwell v. Connecticut, 310 U. S. 296, the 
Supreme Court reversed a conviction on the 
ground that the common law of Connecticut as 
interpreted and applied by the courts was a denial 
of due process by state action contrary to the



15

14th Amendment. Similarly, in Bridges v. Cali­
fornia, 314 U. S. 252, the Supreme Court reversed 
a contempt sentence on the ground that the state 
court improperly interpreted the common law so 
as to infringe upon the guarantees of the 14th 
Amendment.

In American Federation of Labor v. Swing, 
312 U. S. 321, the Court stated, at page 326:

“ The scope of the Fourteenth Amendment is 
not confined by the notion of a particular 
state regarding the wise limits of an in­
junction in an industrial dispute.”

It seems fallacious to assume that a suit for a 
permanent injunction is private action, since in 
granting such injunctive relief, this Court would 
clearly be acting for the state. This Court is not 
a private arbitrator. It is the state and every 
piece of enforcement machinery belonging to the 
State of New York is at its disposal to compel 
compliance with its decrees. This is the more 
easily realized by considering the fact that racial 
restrictive covenants are not self-enforcing, but 
depend absolutely upon judicial decree.

Since it is true that the courts are bound to 
observe the limitations imposed by the 14th 
Amendment as are other branches of the state 
government, then upon reviewing the result in 
the hypothetical situation propounded at the out­
set herein, it is further apparent that since any 
legislative attempt to segregate residential areas 
on the basis of color is offensive to the 14th 
Amendment (Buchanan v. Warley; Harmon v. 
Tyler, supra) the same result cannot be accom­
plished by the judiciary. Stated otherwise, the 
unavoidable conclusion is, that citizens of a state



16

are equally powerless to require its courts to 
accomplish an objective which the Supreme 'Court 
of the United States will not permit a state to 
accomplish by permissive or direct legislation.

This conclusion was long ago established in 
Gandolfo v. Hartman, 49 Fed. 181, decided in 1892, 
wherein the Court stated:

“ It would be a very narrow construction of 
the constitutional amendment in question and 
the decisions based on it and a very restricted 
application of the broad principle upon which 
both the amendment and the decisions pro­
ceed to hold that while state and municipal 
legislatures are forbidden to discriminate 
against the Chinese in their legislation, a 
citizen of the state may lawfully do so by con­
tract which the courts may enforce * # * Any 
result inhibited by the Constitution can no 
more be accomplished by contracts of indi­
vidual citizens than by legislation and the 
court should no more enforce the one than 
the other.”

Very recently (1945) in Anderson v. Anseth, 
Los Angeles (Cal.) Superior Court (No. 48408— 
not reported), the complaint in an action by white 
property owners to enforce a restrictive covenant 
against Negroes, was held to state no cause of 
action in that the enforcement of the covenant by 
the court would be unconstitutional in depriving 
the defendants of the equal protection of the law 
guaranteed by the 14th Amendment, Mr. Justice 
Thurmand Clark said:

“ This court is of the opinion that it is time 
that members of the Negro race are accorded, 
without reservation and evasions, the full



17

rights guaranteed them under the 14th 
Amendment of the Federal Constitution.”

The same Court added, by way of dictum:
“ Judges have been avoiding the real issue 
for too long. Certainly there was no dis­
crimination against the Negro race when it 
came time to calling upon its members to 
die upon the battlefields in defense of this 
country in the war just ended.”

Since no legislative body in the State of New 
York would be permitted to bring about, directly 
or indirectly, racial residential segregation, by 
what authority can the plaintiffs expect this Court, 
which is equally subject to the prohibitions of the 
14th Amendment, to grant them relief!

It has been contended that, in New York State, 
the case of Ridgway v. Cockburn, 163 Misc. 511, 
decided that the enforcement of racial restrictive 
covenants did not contravene the 14th Amend­
ment. It is therefore necessary to examine this 
case closely to ascertain if such contention is 
correct.

Ridgway v. Cockburn drew for its support on 
the Supreme Court case of Corrigan v. Buckley, 
271 U. S. 323, which case has similarly been used 
by a few other state courts as precedent for the 
proposition that judicial enforcement by a state 
court does not violate the 14th Amendment. West­
chester County Special Term in Ridgway v. Cock­
burn misconstrued Corrigan v. Buckley as con­
trolling and made no further inquiry. The opin­
ion shows this. In its four page opinion all that 
is said concerning constitutionality is:

“ (2) Constitutionality. The second de­
fense is to the effect that the enforcement of



18

the covenant would deprive the defendant of 
her property without due process of law, and 
would deny her the equal protection of the 
laws, in violation of the federal constitution, 
and in particular of the Fourteenth Amend­
ment. It is sufficient to say that the United 
States Supreme Court has held that a cov­
enant of this precise character violated no 
constitutional right. (Corrigan v. Buckley, 
271 U. S. 323.)”

But even the most cursory examination of 
Corrigan v. Buckley reveals two essential rea­
sons why it is not an adjudication on the question 
of judicial enforcement. The constitutionality of 
judicial enforcement was not properly .raised on 
appeal and, accordingly, the issue was not before 
the court for determination as the court said. 
Secondly, the question of judicial enforcement as 
violative of the 14th Amendment could not pos­
sibly have been settled by Corrigan v. Buckley 
for the actual, though often unnoticed, fact is 
that the action originally arose in the District of 
Columbia and it is undisputed that the provisions 
of the 14th Amendment are addressed only to the 
states and not to the District of Columbia or the 
federal government where only the 5th Amend­
ment is applicable which contains no equal pro­
tection clause.

The court in Ridgway v. Cockburn actually had 
no precedent to rely on in determining the ques­
tion, and since the court saw fit to adopt for prece­
dent what actually is non-existent as precedent 
and could not have been precedent, the learned 
court cannot be said to have even considered the 
constitutional question. Consequently, Ridgway 
v. Cockburn and any state decision on the ques­



19

tion of judicial enforcement wliicli relies on Cor­
rigan v. Buckley, is without legal basis. It is not 
without significance that no decree or judgment 
was entered in Ridgway v. Cockburn and that the 
defendant continued to occupy the premises.

The plain and inescapable fact is that this ques­
tion has never been decided by the Supreme Court 
of the United States. Nor has it been before any 
New York State appellate court.

For further consideration of the constitutional 
problems raised by this action, the attention of 
this Court is invited to the following authoritative 
and exhaustive articles:

“ Validity of Anti-Negro Restrictive Cov­
enants: A Reconsideration Of The Problem” 
By Harold I. Kahen (12 Univ. of Chicago 
Law Review 198, 1945).
“ Racial Residential Segregation By State 
Court Enforcement of Restrictive Agree­
ments, Covenants Or Conditions In Deeds Is 
Unconstitutional” By Prof. D. 0. McGovney 
(33 California Law Review 5, 1945).

P O I N T  I I

Enforcement by this court of the racial re­
strictive agreement in suit is forbidden by- 
existing treaties to which the United States is 
a signatory and which, as such, are the supreme 
law of the land.

Article VI, Clause 2 of the Constitution of the 
United States declares:

“ The Constitution, and the Laws of the 
United States which shall be made in Pur­
suance thereof; and all Treaties made, or



20

which shall be made, under the Authority of 
the United States, shall be the supreme Law 
of the Land and the Judges in every State 
shall be bound thereby, any Thing in the 
Constitution o,r Laws of any State to the Con­
trary notwithstanding.” (Italics added.)

The Constitution in so many words, says that 
a treaty entered into by the United States with 
another or other nations constitutes law which 
has precedence over all other law throughout this 
country.

The rationale underlying this supremacy has 
been fully interpreted in Kennett v. Chambers, 
14 How. 38, by Mr. Justice Taney, whose opinion 
states, in part, that:

“ * * * as the sovereignty resides in the 
people, every citizen is a portion of it, and is 
himself personally bound by the laws which 
the representatives of the sovereignty may 
pass, or the treaties into which they may 
enter, within the scope of their delegated 
authority.”

It is, therefore, pertinent to the issue before 
this Court to ascertain whether there is any treaty 
or treaties in force which would be violated by 
granting the decree the plaintiffs seek.

On March 6, 1945, in Mexico City, the United 
States duly executed a treaty with the Latin 
American nations known as the Act of Chapul- 
tepec which provides, among other things, that 
the signers will:

<<* # * prevent with all the means within 
their power all that may provoke discrimina­
tion among individuals because of racial and 
religious reasons.”



2 1

This pledge is similarly contained in the United 
Nations Charter, Article 55 (c) where it is stated 
that:

“ The United Nations shall promote * * * 
uniform respect for, and observance of, 
human rights and fundamental freedoms for 
all without distinction as to race, sex, lan­
guage and religion. ’ ’

Article 56 of the United Nations Charter further 
states that:

“ All members pledge themselves to take joint 
and separate action in cooperation with the 
organization for the achievement of the pur­
poses set forth in Article 55.”

This is the “ supreme law of the land” and 
there is imposed by these treaties a solemn obli­
gation incumbent upon every governmental organ 
in this country to affirmatively prevent discrimi­
nation in the enumerated categories.

Since racial restrictive agreements of the type 
at bar are clearly discriminatory in that they ef­
fect a deprivation upon citizens of one race, the 
Negro, and have no application to the citizens of 
the white race, it becomes apparent that the ac­
tion of any judicial body which supplies govern­
mental enforcement by way of injunction or other 
order, serves only to strengthen such discrimina­
tory agreement and thus lend the governmental 
support without which plaintiffs could not achieve 
their undemocratic objectives.

It is thus seen that such a decree would be the 
sine qua non of this discriminatory practice and 
it is clear that such judicial enforcement would 
flagrantly violate a body of law to which this 
Court is required to adhere.



22

The force and effect of treaties of the United 
States may be illustrated by the following sam­
pling of Supreme Court cases:

In Missouri v. Holland, 252 U. S. 416, the Su­
preme Court upheld the Migratory Bird Treaty 
Act, a federal law enacted pursuant to the Mi­
gratory Bird Treaty in force between the United 
States and Great Britain, as overriding state 
law on the ground that the treaty making power, 
unlike the legislative power is not limited by any 
concept of powers constitutionally reserved to the 
states. The legislation in issue was upheld even 
though similar legislation enacted prior to the 
execution of the treaty, had been deemed an im­
proper exercise of Congressional authority under 
the commerce clause of the Constitution, (cf. 
U. S. v. Shauver, 214 Fed. 154; U. S. v. McCullagh, 
221 Fed. 288.)

In Hauenstein v. Lynham, 100 U. S. 483, the 
descent and distribution laws of the State of Vir­
ginia were overriden under the supremacy of an 
existing treaty affecting a national of Switzerland. 
Similarly in Nielson v. Johnson, 279 U. S. 47, 
the provisions contained in a treaty between the 
United States and the government of Denmark 
held precedence over inheritance tax statutes of 
the State of Iowa.

A comparable situation arose in He Geofrey v. 
Riggs, 133 U. S. 258, affecting the inheritance 
of real property in the District of Columbia where 
the terms of a French treaty were given prece­
dence.

In U. S. v. Pink, 315 U. S. 203, New York law 
yielded to the supremacy of the Litvinov agree­
ment between the United States and the Soviet 
Union as to the disposition to creditors of the 
assets of a liquidated Russian insurance company.



23

In Kennett v. Chambers, the Supreme Court of 
the United States asserted the supremacy of the 
treaty by denying specific performance (judicial 
enforcement) of a contract which, if enforced, 
would be repugnant to the objectives of treaties 
with Mexico. The Court, per Taney, J. stated 
at page 46:

‘ ‘ These treaties, while they remained in force 
were, by the Constitution of the United 
States, the supreme law, and binding not only 
upon the government, but upon every citizen. 
No contract could lawfully be made in viola­
tion of their provisions.”

In Gandolfo v. Hartman, supra, a restrictive 
covenant against renting to Chinese persons was 
denied enforcement on the ground that a treaty 
between the United States and the Chinese gov­
ernment overrode all other applicable law and, 
as such, made judicial enforcement improper.

Applying the reasoning and authority of Gan­
dolfo v. Hartman to the case at bar, it is evident 
that, since the plain tiff s are enlisting the assist­
ance of the judicial arm of the government of the 
State of New York to further a discriminatory 
practice against citizens of this country, such a 
decree cannot be granted without being in direct 
violation of two treaties to which this Court must 
give precedence over all other applicable law.

The conclusion follows that this Court, in light 
of the supreme law of the land forbidding dis­
crimination to any citizen by reason of race, color 
and religion, is, as an agent of the government of 
the State of New York, required to deny any re­
lief to the plaintiffs in furtherance of their dis­
criminatory objective.



24

P O I N T  I I I

The restrictive agreement in this action is 
void as contrary to the present public policy of 
New York anti the United States.

It is axiomatic that an agreement violative of 
and repugnant to the public policy of the juris­
diction constitutes a void contract. The contra­
vention of public policy by racial restrictive 
covenants has not been passed upon by any ap­
pellate court in New York State, but it has been 
before the Supreme Court in Westchester County 
in Ridgway v. Cockburn, 163 Misc. 511, and de­
cided to be insufficient as a basis for declaring the 
agreement then before that court void.

Cited though Ridgway v. Cockburn is as the 
New Yo.i'k rule, it cannot be overlooked that it 
considered the point so fragmentarily as to have 
amounted to no determination.

It is either the public policy of this state to 
decry discrimination wherever it appears, or it 
is the state’s attitude to ignore it as lacking suffi­
cient importance to warrant the formulation of a 
policy on the subject. The second alternative, 
being that of abetting, activating and implement­
ing discrimination is so inconceivable as to merit 
no discussion.

Since, as said in Merts v. Merts, 271 N. Y. 466 
471, the public policy of a state is based on its 
statutes, then it is proper that a full examination 
on the subject of discrimination be made of the 
statutes in force in this state, as an aid to de­
termining the official attitude of this jurisdiction.

The New York statutes contain the following 
laws directed at curtailing racial and religious dis­
crimination :



25

Civil Rights Law, Sections 40, 40(a) and 40(b), 
forbids discrimination in places of public accom­
modation and to applicants for official positions 
in the public schools.

Civil Rights Law, Section 41, provides a pen­
alty to a person aggrieved by discrimination for­
bidden by the foregoing section.

Penal Law, Section 514, makes certain classes 
of discriminatory practices criminal conduct pun­
ishable as misdemeanors.

Penal Law, Section 1191 (4), forbids discrimina­
tion by life insurance companies with regard to 
premiums and policies.

Public Housing Law, Section 223, prohibits dis­
crimination.

Labor Law, Section 220 (e), forbids contractors 
on public works projects from discriminating in 
hiring or employment practices.

There have also been enacted since the Ridg- 
way v. Cockburn decision, supra, two significant 
pieces of legislation which are exceptionally clear 
on the subject of the policy of this state on dis­
crimination.

Executive Law, Section 125, reads, in part, as 
follows :

“ ***■ the legislature hereby finds and de­
clares that practices of discrimination against 
any of its inhabitants because of race, creed, 
color or national origin are a matter of state 
concern, that such discrimination threatens 
not only the rights and proper privileges of 
its inhabitants but menaces the institutions 
and foundations of a free democratic state.” 
(Adopted 1945)

It seems especially significant that, although 
this law relates to employment and related prac-



26

tices, the preamble is not addressed solely to 
discrimination in that field, but is a declaration 
that any racial or religious discrimination is an 
undesirable policy and inimical to the state’s best 
interests.

The Constitution of the State of New York 
(Article 1, Section 11) reads;

“ No person shall be denied the equal protec­
tion of the laws of this state or any subdivi­
sion thereof. No person shall, because of 
race, color, creed or religion, be subjected to 
any discrimination in his civil rights by any 
other person or by any firm, corporation, or 
institution or by the state or any agency or 
subdivision of the state.” (Adopted 1938) 
(Italics ours.)

These statutory pronouncements considered to­
gether constitute a legislative statement of the 
public policy of this state at present date as con­
demning racial and religious discrimination.

In Mertz v. Mertz, 271 N. Y. 466, the late Mr. 
Justice Lehman stated (page 471):

“ The courts must always endeavor to apply 
to the facts of a particular case a general rule 
of law which they find expressed in statute 
or judicial decision or which they formulate 
to meet new conditions; and even in formu­
lating a rule individual notion of public pol­
icy may be given effect only where the court 
finds that its notion of public policy is so gen­
erally held and so obviously sound that it is 
in fact a part of the law of the State.” 
(Italics ours.)

Whatever may have been the public policy of 
this state as determined by Ridgway v. Coclcburn



27

in 1937, there is no such paucity of statutory 
enactment at this time as to warrant the applica­
tion of the rule of that case to the case at bar.

The public policy of the United States con­
demns racial and religious discrimination with 
equal force.

In Strauder v. West Virginia, 100 U. S. 303, 
308, the Supreme Court in commenting upon the 
purpose of the 14th Amendment, said:

“ What is this (the Amendment) but declar­
ing that the law in the States shall be the 
same for the black as for the white; that all 
persons, whether colored or white, shall stand 
equal before the laws of the States, and, in 
regard to the colored race, for whose protec­
tion the Amendment was primarily designed, 
that no discrimination shall be made against 
them by law because of their color? The 
words of the Amendment, it is true, are pro­
hibitory, but they contain a necessary impli­
cation of a positive immunity, or right, most 
valuable to the colored race—the right to 
exemption from unfriendly legislation against 
them distinctly as colored; exemption from 
legal discriminations, implying inferiority in 
civil society, lessening the security of their 
enjoyment of the rights which others enjoy, 
and discriminations which are steps toward 
reducing them to the condition of a subject 
race. ’ ’

Likewise in a concurring opinion in Steele v. 
Louisville and Nashville R. R. Co., 67 Sup. Ct. 
226, Mr. Justice Murphy stated:

“ The Constitution voices its disapproval 
whenever economic discrimination is applied



28

under authority of law against any race, 
creed or color.”

Despite the war hysteria motivating others in 
1943, the Supreme Court decided the Japanese 
curfew cases on constitutional grounds. The 
opinions are forthright statements of the public 
policy of the United States.

The late Mr. Chief Justice Stone wrote in the 
majority opinion (Hirabayashi v. United States, 
320 U. S. 81, 100):

“ Distinctions between citizens solely because 
of their ancestry are by their very nature 
odious to a free people whose institutions are 
founded upon the doctrine of equality. For 
that reason, legislative classification or dis­
crimination based on race alone has often 
been held to be a denial of equal protection. ’ ’

Mr. Justice Murphy concurring said at pages
110, 111:

“ Distinctions based on color and ancestry 
are utterly inconsistent with our traditions 
and ideals. They are at variance with the 
principles for which we are now waging war. 
We cannot close our eyes to the fact that for 
centuries the Old World has been torn by 
racial and religious conflicts and has suf­
fered the worst kind of anguish because of 
inequality of treatment for different groups. 
There was one law for one and a different 
law for another. Nothing is written more 
firmly into our law than the compact of the 
Plymouth voyagers to have just and equal 
laws.”



29

And in the dissenting opinion in Mays v. 
Burgess, 147 Fed. 2nd 869, 875, Mr. Justice 
Edgerton in discussing the Fair Employment 
Practices Commission as indicative of the federal 
attitude of securing equality for all citizens alike, 
stated:

“ I can see no sufficient distinction from the 
point of view of policy, between discrimina­
tion in employment and discrimination in 
housing. ’ ’

Turning to written law from which public 
policy may be determined (Mertz v. Merts, supra) 
the mandate in Title 8, Section 42 of the United 
States Code is precise and unequivocal:

“ All citizens of the United States shall have 
the same right, in every State and Territory, 
as is enjoyed by white citizens thereof to 
inherit, purchase, lease, sell, hold, and con­
vey real and personal property.”

Similarly, federal policy can be ascertained 
from an examination of the Act of Chapultepec 
and the United Nations Charter, both of which 
pledge the United States to combat discrimination 
based on race, color or religion.

The Supreme Court of Ontario in re Drum­
mond Wren (Ontario Reports, 1945, page 778) 
removed a land covenant containing a restriction 
that:

“ Land not to be sold to Jews or persons of 
objectionable nationality.”

Judge Mackay found the covenant void and of 
no effect as the restriction was discriminatory



30

and repugnant to the pledg’es contained in the 
United Nations Charter (supra).

It cannot be said, that now in the flush of a 
victorious termination of a global struggle to rid 
the world of “ superior race” ideologies and the 
injustice, inequality and discrimination that ac­
company such fictions, and the existence of solemn 
pledges by the United States to further end dis­
crimination (United Nations Charter, Act of 
Chapultepec, supra) by which all states and judges 
are bound, that an agreement by some members of 
the white race which arbitrarily excludes every 
member of the Negro race, solely by reason of 
such color, from the enjoyment of a home which 
is otherwise available to him, is in conformity 
with the public policy of this State and govern­
ment.

CONCLUSION

The complaint does not state a cause of action 
and should be dismissed.

Respectfully submitted,

A n d rew  D. W ein b er g er , 
Attorney for Defendant 

Samuel Richardson.

A ndrew  D. W ein b er g er  and 
V e r tn er  W. T andy , J r.,

of Counsel.