the set-off of the fair and reasonable value of the mortgaged premises as provided for in the New York Moratorium Act. This fact the defendant insists amounts to a denial of the full and equal justice to which he is entitled, and to deny the motion will be to deprive him of his only prospect of a just determination of the matter.
In asking the court to exercise its discretion and decline jurisdiction, defendant relies upon an application of the doctrine of forum non conveniens, the rule of convenience as applied to discretionary jurisdiction.
It may be observed that the frequently expressed rule that courts may not decline to exercise jurisdiction conferred upon them, has been qualified in certain cases where the Federal Courts may in their discretion properly withhold the exercise of such jurisdiction where there is no want of another suitable forum. Canada Malting Co. v. Paterson Steamships, 285 U.S. 413, 52 S. Ct. 413, 76 L. Ed. 837; Massachusetts v. Missouri, 308 U.S. 1, 60 S. Ct. 39, 84 L. Ed. 3. Where it appears evident that a just determination may be attained, however, the rule may not be easily dispensed with, and the court will not loosely exercise its discretion in declining jurisdiction.
In support of his contention defendant relies principally upon the case of Rogers v. Guaranty Trust Co., 1932, 288 U.S. 123, 53 S. Ct. 295, 298, 77 L. Ed. 652, 89 A.L.R. 720, and cases stemming therefrom.
The Rogers case was a stockholders suit against a corporation and its directors. In that case the court stated:
'Obviously no definite rule of general application can be formulated by which it may be determined under what circumstances a court will assume jurisdiction of stockholders' suits relating to the conduct of internal affairs of foreign corporations. But it safely may be said that jurisdiction will be declined whenever considerations of convenience, efficiency, and justice point to the courts of the state of the domicile as appropriate tribunals for the determination of the particular case.'
See also Massachusetts v. Missouri, supra.
In Overfield v. Pennroad Corporation, 3 Cir., 113 F.2d 6, 10, also a stockholders' suit, the Circuit Court of Appeals for the Third Circuit stated in reference to this rule:
'The rule or convenience as applied to discretionary jurisdiction is not in derogation of jurisdiction. It seeks to lead to that jurisdiction, whether it be federal or state, which, under attending circumstances, gives best prospect of affording a convenient, efficient and just determination of the particular case. The rule is intended to promote justice and not to furnish an avenue of escape for those who should answer somewhere for the wrongs charged against them.'
Numerous additional cases have been cited by the defendant in support of his position. In no case cited, however, nor has independent research disclosed any, has the rule been invoked under circumstances similar to those here involved. As heretofore stated, the rule that a court having jurisdiction must exercise it is no longer universally true. Nonetheless, it follows that the court will exercise its discretion only under the most compelling circumstances.
Where it is evident that a just determination upon the merits may be had, jurisdiction will not be declined merely as an accommodation.
In the present case no substantive right of the defendant is denied him. The jurisdiction of this court is properly invoked and a convenient, efficient and just determination upon the merits is here afforded to the parties.
I am unable to find that the circumstances attendant upon this matter are such that the court should exercise its discretion and decline jurisdiction.
Defendant's motion is accordingly denied.
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