June 25, 1949. It clearly appears from the historical facts that by May 23, 1949, when the Federal Republic of Germany was proclaimed, there had been a cessation of hostilities without any intention on the part of either party to resume the conflict. The emergency and war powers created by statute, with certain exceptions, had been terminated, and commercial and trade relations between Germany and the United States had been restored. The application of the common law rule was no longer 'necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy.' It follows that the third cause of action is barred by the statute of limitations.
The defendant moves to dismiss the claim for profits asserted under the 'First Cause of Action' on the ground that its prosecution is barred by the doctrine of laches. This claim is essentially a legal claim for breach of contract based upon the failure of the defendant to make payment of the profits due under the contract of 1920. It is our opinion that this claim is barred by the statute of limitations. However, if it is regarded as a claim for an accounting cognizable in equity, it is barred by the doctrine of laches for the reasons hereafter considered.
Doctrine of Laches
The defendant moves to dismiss the claims asserted under the 'Second Cause of Action' and 'Fourth Cause of Action', supra, on the ground that they are barred under the doctrine of laches. These are claims to a proprietary interest in certain businesses and are supported by the charge that upon termination of the 'joint venture' upon the entry of the final judgment, supra, the defendant appropriated and converted the assets of the businesses to its own use. These are essentially claims for the unlawful conversion of property and, therefore, the right of the plaintiff to prosecute them is governed by the express language of the statute of limitations, supra
However, for the purposes of the present motion we shall regard the action as one in equity to compel an accounting and to settle a controversy between and to settle a controversy between cognizable either in a court of law or a court of equity; the jurisdiction of these courts in this type of action is concurrent. While the statute of limitations is no bar to an action in equity, its provisions may be invoked as a guide where the action is one also cognizable at law. Conover v. Wright, 6 N.J.Eq. 613; Arnett v. Finney, 41 N.J.Eq. 147, 3 A. 696; Depew v. Cloton, 60 N.J.Eq. 454, 46 A. 728; Bahr v. Breeze Corporations, 126 N.J.Eq. 124, 8 A.2d 185. It is well established that where there is both a legal and an equitable remedy for the same wrong, if the legal remedy is barred by the lapse of time, the equitable remedy is also barred. Ibid. The rule is applicable to an action in equity to enforce an implied or constructive trust. Condit v. Bigalow, 64 N.J.Eq. 504, 54 A. 160.
Since the jurisdiction of the Court in the present action is based on diversity of citizenship and is invoked under Section 1332(a)(2) of Title 28 U.S.C.A., the local rule is applicable. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079; Russell v. Todd, 309 U.S. 280, 60 2079; Russell v. Todd, 309 U.S. 280, 60 the case of Russell v. Todd, 309 U.S. at page 289, 60 S. Ct. at page 532: 'Even though there is no state statute applicable to similar equitable demands, when the jurisdiction of the federal court is concurrent with that at law, or the suit is brought in aid of a legal right, equity will withhold its remedy if the legal right is barred by the local statute of limitations.'
It follows that if the claims asserted under the 'Second Cause of Action' and the 'Fourth Cause of Action' are legal claims for the unlawful conversion of property, they are barred by the statute of limitations. If they are regarded as equitable claims, they are barred under the doctrine of laches.
The motion for summary judgment filed by the defendant is granted for the reasons stated. The motion for summary judgment filed by the plaintiff is dismissed. The attorneys for the defendant shall prepare and submit to the Court, on notice to the attorneys for the plaintiff, in appropriate order.
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