
    Esther G. M. Perez, as Administratrix of the Estate of Rosa M. Manas y Pineiro, Deceased, Respondent-Appellant, v Chase Manhattan Bank, N. A., Appellant-Respondent.
    Argued February 22, 1984;
    decided March 30, 1984
    
      POINTS OF COUNSEL
    
      Andrew J. Connick and Mark N. Parry for appellant-respondent.
    I. The Act of State doctrine requires that plaintiff’s claims herein be dismissed. (Underhill v Hernandez, 168 US 250; First Nat. City Bank v Banco Nacional de Cuba, 406 US 759; Banco Nacional de Cuba v Sabbatino, 376 US 398; Oetjen v Central Leather Co., 246 US 297; Ricaud v American Metal Co., 246 US 304; Trujillo-M v Bank of Nova Scotia, 51 Misc 2d 689, 29 AD2d 847, 393 US 982; French v Banco Nacional de Cuba, 23 NY2d 46; Republic of Iraq v First Nat. City Bank, 353 F2d 47, 382 US 1027; Vishipco Line v Chase Manhattan Bank, 660 F2d 854; Menendez v Saks & Co., 485 F2d 1355, revd on other grounds sub nom. Alfred Dunhill of London v Cuba, 425 US 682.) II. New York choice of law rules also require that plaintiff’s claims against Chase be dismissed. (Auten v Auten, 308 NY 155; Sokoloff v National City Bank, 239 NY 158; Dougherty v Equitable Life Assur. Soc., 266 NY 71; Tillman v National City Bank, 118 F2d 631, 314 US 650; United States v Belmont, 301 US 324; Zimmermann v Sutherland, 274 US 253; Trujillo-M v Bank of Nova Scotia, 51 Misc 2d 689; Day-Gormley Leather Co. v National City Bank, 8 F Supp 503.) III. No interest is payable on the certificates of deposit from the date of maturity to January 21, 1974, the date of demand.
    
      Gerald D. Roth, Irving Margolies and Peter P. Kenny for respondent-appellant.
    I. Under its contract with plaintiff, Chase is obligated under the certificates, notwithstanding the confiscatory actions of the Cuban government. (Long Is. R. R. Co. v Northville Inds. Corp., 41 NY2d 455; Wood v Duff-Gordon, 222 NY 88; South Amer. Petroleum Corp. v Colombian Petroleum Co., 177 Misc 756; Anglo-Continen
      
      tale Treuhand, AG. v St. Louis Southwestern Ry. Co., 81 F2d 11, cert den sub nom. Henwood v Anglo-Continentale Treuhand, AG., 298 US 655; Pan Amer. Securities Corp. v Fried, Krupp AG., 169 Misc 445, 256 App Div 955; Van der Veen v Amsterdamsche Bank, 178 Misc 668.) II. New York law is applicable as a matter of choice of law, and under New York’s traditional policy against uncompensated confiscations, the Cuban confiscation should not be recognized. The Act of State doctrine does not require a different result. It is not applicable because of the territorial limitations on that doctrine. (Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220, 423 US 866; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Vishipco Line v Chase Manhattan Bank, 660 F2d 854; Republic of Iraq v First Nat. City Bank, 353 F2d 47, 382 US 1027; KMW Int. v Chase Manhattan Bank, 606 F2d 10; Blanco v Pan-American Life Ins. Co., 221 F Supp 219, 362 F2d 167; Stroganoff-Scherbatoff v Weldon, 420 F Supp 18; Salimoff & Co. v Standard Oil Co., 262 NY 220; Tabacalera Severiano Jorge, S.A. v Standard Cigar Co., 392 F2d 706.) III. Chase’s nationalization and banking law defenses are not sustainable. IV. Plaintiff is entitled to interest at the legal rate from and after the date Chase breached its obligations in 1959. (Borrello v Perera Co., 381 F Supp 1226; Rachlin & Co. v Tra-Mar, Inc., 33 AD2d 370; Sokoloff v National City Bank, 250 NY 69; People v Merchants’ Trust Co., 187 NY 293; Smiley v Fry, 100 NY 262; Delahunty v Central Nat. Bank, 37 App Div 434; Hechter v New York Life Ins. Co., 46 NY2d 34; Barr v Wackman, 36 NY2d 371; Lowden v Northwestern Nat. Bank & Trust Co., 86 F2d 376, 298 US 160, 299 US 583.)
    
      John L. Warden, H. Rodgin Cohen and Michael Straus for The New York" Clearing House Association, amicus curiae.
    
    I. Cuba’s seizure of Chase’s debt to Manas was an Act of State affecting property situated in Cuba and extinguished the debt. (Banco Nacional de Cuba v Sabbatino, 376 US 398; Underhill v Hernandez, 168 US 250; Republic of Iraq v First Nat. City Bank, 353 F2d 47, 382 US 1027; Clearfield Trust Co. v United States, 318 US 363; Det Bergenske Dampskibsselkab v Sabre Shipping Corp., 341 F2d 50; Dougherty v National City Bank, 157 Misc 849; McCloskey v Chase Manhattan Bank, 11 NY2d 936; Bluebird Undergarment Corp. v Gomez, 139 Misc 742; Dougherty v Equitable Life Assur. Soc., 266 NY 71; Trujillo-M v Bank of Nova Scotia, 51 Misc 2d 689, 29 AD2d 847, 393 US 982.) II. Cuba’s nationalization of Chase’s Cuban branch was also an Act of State and extinguished any liability of Chase to Manas. (Dougherty v Equitable Life Assur. Soc., 266 NY 71; Tillman v National City Bank, 118 F2d 631, 314 US 650; Dougherty v National City Bank, 157 Misc 849.) III. The court below erred in concluding that under the circumstances of this case, Chase’s debt was situated only outside of Cuba. (Menendez v Saks & Co., 485 F2d 1355; Harris v Balk, 198 US 215; Vishipco Line v Chase Manhattan Bank, 660 F2d 854; Republic of Iraq v First Nat. City Bank, 353 F2d 47; Sokoloff v National City Bank, 239 NY 158; Dougherty v Equitable Life Assur. Soc., 266 NY 71.) IV. The court below’s imposition of double liability contravenes the mandate of the State Legislature. (Dougherty v National City Bank, 157 Misc 849.) V. The court below’s holding conflicts with Federal and State law regulating banking.
    
      John Leferovich, Jr., Henry Harfield, John E. Hoffman, Jr., and Jennifer Freeman for the New York State Bankers Association, amicus curiae.
    
    I. New York law protects New York banking organizations against multiple liability. (Banco Nacional de Cuba v Sabbatino, 376 US 398; Underhill v Hernandez, 168 US 250; Salimoff & Co. v Standard Oil Co., 262 NY 220; Trujillo-M v Bank of Nova Scotia, 51 Misc 2d 689, 29 AD2d 847, 393 US 982; Bernstein v Van Heyghen Frères Societe Anonyme, 163 F2d 246, 332 US 772; Republic of Iraq v First Nat. City Bank, 353 F2d 47, 382 US 1027; First Nat. City Bank v Banco Nacional de Cuba, 406 US 759; Banco Nacional de Cuba v First Nat. City Bank, 478 F2d 191; Banco Nacional de Cuba v Farr, 383 F2d 166, 390 US 956; Pons v Republic of Cuba, 294 F2d 925, 368 US 960.) II. The place of payment determines the situs of a debt. When the contract of indebtedness specifies no place of payment or contemplates alternate places of payment, the debt acquires a final situs at the place of first enforcement. (Trujillo-M v Bank of Nova Scotia, 51 Misc 2d 689; Menendez v Saks & Co., 485 F2d 1355, revd on other grounds sub nom. Alfred Dunhill of London v Cuba, 425 US 682; Vishipco Line v Chase Manhattan Bank, 660 F2d 854; Tillman v National City Bank, 118 F2d 631, 314 US 650; Sokoloff v National City Bank, 239 NY 158; Dougherty v Equitable Life Assur. Soc., 266 NY 71; Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220, 423 US 866.) III. The decision of the court below improperly and unfairly imposes political risk on New York banking organizations and disregards the realities of international banking. (Shaffer v Heitner, 433 US 186.)
   OPINION OF THE COURT

Kaye, J.

Rosa Manas y Pineiro (Manas), a Cuban national, in 1958 purchased five certificates of deposit from the Marianao, Cuba branch of defendant Chase Manhattan Bank (Chase), and first presented them for payment at Chase’s New York office in 1974. The issue on this appeal is whether Chase is excused from payment to Manas because, in September, 1959, the Cuban government confiscated Manas’ accounts and Chase surrendered the funds representing the certificates. Because the certificates were payable in Cuba and Chase at the time of the confiscation was present there, the Cuban government had the power to enforce and collect Chase’s debt to Manas in Cuba, and the Act of State doctrine precludes inquiry by this court into the propriety of a confiscation directed particularly at Manas’ assets in Cuba. Having once made payment, Chase is not liable to pay on the certificates of deposit a second time.

Plaintiff, Esther Garcia Manas Perez, is the administratrix of Manas’ estate. Manas was the wife of a cabinet minister in the government of Cuba’s former leader, General Fulgencio Batista. Between May and December, 1958, she purchased five non-negotiable certificates of deposit, totaling $227,336.47, from Chase by depositing Cuban pesos in that amount at Chase’s branch in Marianao, a suburb of Havana. The certificates provided for the payment of 3% interest and had maturity dates between April and June, 1959. Plaintiff claims that political uncertainty in Cuba motivated the purchase of these certificates from a worldwide bank, and that Manas was repeatedly assured by a Chase employee that the certificates could be redeemed wherever Chase had an office, particularly in the United States. However, no place of payment was specified in the certificates. The certificates provided only that payment was to be made in “moneda nacional,” or national currency.

When Fidel Castro assumed control on January 1,1959, Manas’ husband took asylum in the Colombian embassy in Havana and thereafter left Cuba for Colombia. Manas remained in Cuba for the first half of 1959, visited her husband in Colombia, returned to Cuba for approximately four months in 1960, joined her husband in Mexico, and both later relocated to the United States. In that period no effort was made to redeem the certificates.

By Law No. 78 of February 13, 1959, the Cuban government created the Ministry of Recovery of Misappropriated Property “to recover property of any type which has been removed from the National Wealth and obtain the complete restoration of the proceeds of unjust enrichments obtained under the cover of the Public Power.” The minister was given the power to conduct investigations, freeze bank accounts, take possession of property, and enact “final decisions” returning the confiscated property to the “National Wealth.” Chase was thereafter directed to freeze accounts belonging to certain former government officials and their families, and in September, 1959 the ministry ordered Chase to close such frozen accounts — including specifically those represented by Manas’ certificates which had by then reached maturity — and remit the proceeds to the ministry. In compliance with that directive Chase turned funds in the amount of Manas’ certificates over to the government. Approximately a year, after the confiscation of Manas’ assets, on July 6, 1960, the Castro government enacted Law No. 851, providing for nationalization of United States firms in Cuba, and by Resolution No. 2 of September 17, 1960, the government nationalized all of Chase’s Cuban branches.

It was not until January, 1974 that Manas, by then residing in the United States, for the first time presented her certificates to Chase’s office in New York and demanded payment, which was refused. Manas instituted this action in July, 1974 by motion for summary judgment in lieu of complaint, and Chase cross-moved for summary judgment. Both motions were denied, and the Appellate Division affirmed (52 AD2d 794). Chase subsequently removed the case to the United States District Court for the Southern District of New York, but the action was remanded (443 F Supp 418).

The action proceeded to trial in June of 1980. The following three questions were submitted to the jury:

“1. What was the intention of [Manas] and [Chase] with regard to the currency with which the certificates of deposit were to be repaid? 1. U.S. dollars; 2. Cuban pesos.

“2. What was the intention of [Manas] and [Chase] with regard to the place of presentment of the certificates of deposit? 1. New York only; 2. Marianao, Cuba only; 3. any branch of the defendant Chase anywhere in the world, including New York and Marianao, Cuba; 4. any branch of defendant Chase anywhere in the world, excluding Marianao, Cuba.

“3. Were [Manas’] funds on deposit in defendant Chase in Marianao confiscated by the Cuban government’s Ministry of Misappropriated Funds?”

The jury found that the certificates of deposit were repayable in United States dollars, that the certificates could be presented to any Chase branch in the world, including New York and Cuba, and that Manas’ funds on deposit in Chase’s Marianao branch were confiscated by the Ministry of Misappropriated Funds.

Both parties then moved for judgment. In view of the jury’s findings, Trial Term held that Chase’s debt to Manas had its situs in Cuba as the certificates were capable of being repaid in Cuba and Chase’s Cuban branches were open and operating subject to the laws and jurisdiction of the Cuban government at the time of the September, 1959 confiscation. Trial Term thereupon entered judgment for Chase in December, 1980, concluding:

“In the case at bar, both the persons and the res were within the territorial dominion of the acting State at the time of the confiscatory taking. In this court’s opinion, under the facts as established at trial, the situs of the debt herein was Cuba. In order for this debt to be beyond Cuban jurisdiction in this case, it would have been necessary for the jury to have found that the place of presentment was only outside of Cuba. The jury finding that payment could be anywhere did not change the situs of this debt from Chase in Cuba while it functioned there. It only created an option for plaintiff to collect the debt elsewhere prior to the confiscation. Although it is true, as asserted by plaintiff, that the parent bank is ultimately liable for the obligations of the branch (Sokoloff v National City Bank of N. Y., 130 Misc 66, affd 223 App Div 754, affd 250 NY 69), such a liability does not alter the situs of the debt. When the branch’s liability is extinguished, as under the facts herein, the parent is relieved as well.

“Accordingly, this court holds that the judicial self-limiting act of State doctrine applies herein as the confiscation of plaintiff’s funds was an official act of a sovereign government fully executed within its own jurisdiction and whose validity this court must refuse to inquire into, thereby implicitly giving the act extraterritorial effect.” (106 Misc 2d 660, 666-667.)

The Appellate Division reversed (93 AD2d 402), holding that: (1) the Act of State doctrine applies to the taking of intangible property such as Chase’s debt to Manas only “where the obligation is found to be situated exclusively within the foreign State”; (2) “the Act of State doctrine should not be, and apparently never has been, applied to relieve an American bank of obligations owed by its branches to depositors” (93 AD2d, p 409); and (3) under the rationale of Vishipco Line v Chase Manhattan Bank (660 F2d 854, cert den 459 US 976), when Chase’s Cuban branches ceased operation due to the bank nationalization in 1960, Chase was not relieved from its obligation to redeem the certificates at its other branches, even though the nationalization decree provided that the Cuban government (through Banco Nacional de Cuba) assumed the liabilities of Chase’s Cuban branches. Chase appeals to this court from that determination, and plaintiff cross-appeals from that portion of the Appellate Division’s order relating to the computation of interest on the certificates. Because the Appellate Division’s analysis erroneously ignores the impact of the September, 1959 confiscation specifically seizing Manas’ deposits before Chase’s Cuban branches ceased operation, and otherwise misperceives the applicability of the Act of State doctrine, we now reverse.

The basic premise of the Act of State doctrine is that “the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.” (Underhill v Hernandez, 168 US 250, 252; Banco Nacional de Cuba v Sabbatino, 376 US 398, 416; see Restatement, Foreign Relations Law of United States 2d, § 41.) Whether the property seized is tangible or intangible is not dispositive. (Menendez v Saks & Co., 485 F2d 1355, 1364, revd on other grounds sub nom. Alfred Dunhill of London v Cuba, 425 US 682.) The doctrine applies when the foreign sovereign’s act amounts to a taking of property within its own borders. (Republic of Iraq v First Nat. City Bank, 353 F2d 47, cert den 382 US 1027.)

We must first determine whether the property taken by the Cuban government — here, Chase’s debt to Manas — was within its borders. For purposes of the Act of State doctrine, a debt is located within a foreign State when that State has the power to enforce or collect it. (Weston Banking Corp. v Turkiye Garanti Bankasi, A. S., 57 NY2d 315, 324; Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220, 228, cert den 423 US 866; Menendez v Saks & Co., 485 F2d 1355, 1364, supra; United Bank v Cosmic Int., 392 F Supp 262, affd 542 F2d 868, 873.) Since Harris v Balk (198 US 215, 222-223), the power to enforce or collect a debt has been dependent on the presence of the debtor. If the debtor is present in the foreign State and the debt is payable there, the foreign sovereign then has power to enforce or collect it, and a confiscation of that debt amounts to a seizure of property within that sovereign’s borders.

At the time the Cuban government confiscated Manas’ deposits in September, 1959, the debtor (Chase) was present in Cuba. Its Cuban branches were open and operating under Cuban authority, and the debt owed by Chase to Manas — as the jury found — was payable at any Chase bank in the world including the Marianao branch where it was confiscated. While the certificates had by that time matured, and could have been redeemed elsewhere, Manas had taken no steps to redeem them in or out of Cuba. Where, as here, Chase paid over the full amount of its debt pursuant to the direction of the Cuban government, a direction which under the Act of State doctrine, is beyond our review, Chase is relieved of liability on any subsequent demand by Manas for the funds. (Trujillo-M v Bank of Nova Scotia, 51 Misc 2d 689, 692-693, affd 29 AD2d 847, cert den 393 US 982.)

The fact that Chase’s debt to Manas was not exclusively payable in Cuba, but could in addition have been paid in other countries, does not affect this result. Manas bargained for and received the right to collect the debt from Chase at any of its branches throughout the world. While the debt contemplated alternate places of payment and thus had multiple situs, because it constituted but a single obligation to pay, payment at one of the places chosen for performance extinguished the debt at all of its situses. Manas herself surely could not have redeemed the certificates of deposit in Cuba and subsequently received payment on those same certificates at a Chase branch in another country. Chase’s debt to Manas was satisfied by payment to the Cuban government in response to its confiscation of Manas’ accounts, and at that point the debt, wherever else it had been payable, was extinguished.

Only when a debt or other obligation is not payable at all in the confiscating State would the Act of State doctrine be inapplicable. In such situations, the foreign sovereign has no power to enforce or collect the debt. (Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220, supra; Republic of Iraq v First Nat. City Bank, 353 F2d 47, cert den 382 US 1027, supra.) Here, however, as the jury found, Chase’s debt to Manas was payable in Cuba, giving Cuba the jurisdiction to collect and enforce it, which the Cuban government exercised. By reason of the Act of State doctrine the legitimacy of the confiscation is beyond our review.

The Hickenlooper amendment (US Code, tit 22, § 2370, subd [e], par [2]), which operates to preclude the application of the Act of State doctrine in certain circumstances, has no effect in this case. The amendment provides as follows: “Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law, including the principles of compensation and the other standards set out in this subsection: Provided, That this subparagraph shall not be applicable (1) in any case in which an act of a foreign state is not contrary to international law or with respect to a claim of title or other right to property acquired pursuant to an irrevocable letter of credit of not more than 180 days duration issued in good faith prior to the time of the confiscation or other taking, or (2) in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that case with the court.”

The Hickenlooper amendment does not apply to confiscations by a foreign State of the property of its own nationals within its borders, since such confiscations are “not contrary to international law” (F. Policio y Compañía, S.A. v Brush, 256 F Supp 481, 486-487, affd 375 F2d 1011, cert den sub norm. Brush v Republic of Cuba, 389 US 830), or to expropriated property that remains in the confiscating country without coming within the territorial jurisdiction of the"United States (Banco Nacional de Cuba v First Nat. City Bank, 431 F2d 394, 400-402, revd on other grounds 406 US 759). Here, Manas was a Cuban citizen at the time of the confiscation and was either present in Cuba or only temporarily absent at the time of confiscation, and the debt, once seized in Cuba, did not come within this country’s jurisdiction. Accordingly, the Hickenlooper amendment does not preclude application of the Act of State doctrine in this action.

Nor are the decisions in Sokoloff v National City Bank (239 NY 158) and Vishipco Line v Chase Manhattan Bank (660 F2d 854, cert den 459 US 976, supra), in any way inconsistent with the result we reach today. In both Sokoloff and Vishipco, the banks were not entitled to rely upon a foreign sovereign’s order confiscating a depositor’s property where the bank’s branches in the foreign State had ceased operations prior to the confiscation order. The situs of the banks’ debts to their depositors was thus no longer in the foreign States and the confiscation order directed at the depositor’s property was of no effect. In Sokoloff this court explained that a “decree of confiscation directed against depositors does not reduce the liabilities of a bank which has already yielded up its assets in virtue of a decree of confiscation directed against itself.” (239 NY 158, 169.) And in Vishipco the Second Circuit wrote (p 862): “More importantly, however, upon Chase’s departure from Vietnam the deposits no longer had their situs in Vietnam at the time of the confiscation decree. As we have said in the past, ‘[f]or purposes of the act of the state doctrine, a debt is not “located” within a foreign state unless that state has the power to enforce or collect it.’ Menendez v. Saks and Co., 485 F.2d 1355, 1364 (2d Cir. 1973), rev’d on other grounds sub nom. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976). The rule announced in Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905), continues to be valid on this point: the power to enforce payment of a debt depends on jurisdiction over the debtor. Since Chase had abandoned its Saigon branch at the time of the Vietnamese decree, and since it had no separate corporate identity in Vietnam which would remain in existence after its departure, the Vietnamese decree would not have had any effect on its debt to the corporate plaintiffs.” But in the case before us it is undisputed that at the time Manas’ accounts were confiscated in September, 1959, Chase’s branches in Cuba were open and operating, and the certificates had matured. Manas thus had the opportunity prior to the seizure to redeem the certificates in Cuba or at any of Chase’s branches throughout the world. Since Chase’s debt to Manas was extinguished before the bank was nationalized, there is no occasion to apply the rationale of Sokoloff and Vis hipeo.

In sum, the situs of Manas’ property — the debt due from Chase on her certificates — was Cuba at the time of the government’s confiscation of her property and Chase’s payment. The confiscation was an act of a foreign sovereign affecting the property of one of its own nationals within its own borders, and cannot be examined in this court. Having paid the full amount of the certificates, Chase was relieved of liability to make a second payment on those certificates when Manas presented them some 15 years later.

Accordingly, the order of the Appellate Division should be reversed, and Trial Term’s judgment for defendant Chase reinstated, and plaintiff’s cross appeal dismissed as academic.

Wachtler, J.

(dissenting). Money deposited in an American bank which is payable at any of its branches, should not be deemed to have its situs in every country in which the bank may have a branch office, so that the debt may be extinguished by any government which decides to confiscate the account “located” within its borders. The concept that a debt may have multiple situses — in every jurisdiction where the debtor has established an office — has never been held by the Supreme Court to be an essential or acceptable ingredient of the Act of State doctrine.

A more conservative application of the Act of State doctrine should not bar the courts of this State from granting the plaintiff any relief in this case. Although the suit is occasioned by the confiscation of bank assets in Cuba, it involves only private litigants and the question as to which of them must bear the loss: the bank whose assets were physically confiscated; or the depositor whose intangible account, payable at any of the bank’s worldwide branches, was designated in the Cuban order of confiscation. If the Act of State doctrine requires this court to abstain from considering the legality or illegality of the foreign seizure, and thus from deciding the case on that ground, it should not preclude the court from resolving this private dispute by consideration of other factors in much the same manner as we would if it had been precipitated by an act of nature.

The Act of State doctrine, which precludes the courts of this country from adjudicating the legality of acts of foreign governments, is akin to the rule which requires the courts to abstain from deciding political questions. It is a rule of Federal law which, although not expressly stated in the Constitution, has “constitutional underpinnings” and is binding on all courts, both State and Federal (Banco Nacional de Cuba v Sabbatino, 376 US 398, 417, 421, 427). It is based on the principle that matters relating to foreign affairs are primarily within the province of the political branches of the Federal Government, and that it is inappropriate for the courts to pass on such matters in the context of individual suits because it could lead to confusion or embarrassment in an area in which the Nation should speak with one voice (Banco Nacional de Cuba v Sabbatino, supra, pp 423, 427-428). Thus, when the courts invoke the Act of State doctrine they are not enforcing the right of a private litigant. Instead they are exercising judicial restraint by declining to decide a question which should properly be resolved through the political process by the political branches of the government charged with responsibility for the conduct of foreign affairs.

The application of the doctrine to foreign seizures of physical assets, such as ships, real estate, raw materials and other products, has posed little difficulty for the courts. In such cases the location of the property at the time of the confiscation is a matter of fact which is generally conceded (see, e.g., Oetjen v Central Leather Co., 246 US 297; Ricaud v American Metal Co., 246 US 304; Shapleigh v Mier, 299 US 468; Banco Nacional de Cuba v Sabbatino, supra). Any threshold questions as to whether the property seized was within the territorial jurisdiction of the confiscatory power, have also been reduced to matters of fact. As Justice Holmes observed, in a case where it was urged that a plantation seized by troops from Costa Rica was actually in Panama: “The fact, if it be one, that de jure the estate is in Panama does not matter in the least; sovereignty is pure fact” (American Banana Co. v United Fruit Co., 213 US 347, 358).

When, however, a foreign government has purported to seize an intangible asset “within” its territory, it is not clear from the Supreme Court decisions whether the Act of State doctrine is applicable and, if so, how it is to be applied (cf. Alfred Dunhill of London v Cuba, 425 US 682, 690). The problem, of course, is that an intangible, such as a debt, has no actual physical location and can only be said to be “located” within a jurisdiction as a matter of law or “legal fiction” (Severnoe Securities Corp. v London & Lancashire Ins. Co., 255 NY 120, 123 [Cardozo, J.]). If the doctrine does generally apply to intangibles it poses two problems for the courts. First, in order to determine whether the doctrine precludes the courts from considering the legality of the seizure in a given case, the court must decide, as a matter of law, the threshold question as to whether the intangible had its legal situs in the confiscating country. Thus the court must apparently violate the concept and determine the legality of the seizure, at least to the extent of determining the threshold question as to whether the confiscating country could lawfully exercise jurisdiction over the asset. This may be a tolerable intrusion into foreign affairs, although it is conceivable that a judicial resolution of the “limited” jurisdictional question could interfere with the political branches by undermining a position they have previously, and perhaps secretly, taken or might otherwise adopt in the future with respect to this or similar confiscatory acts.

Secondly, the courts must decide which law or legal fiction is most appropriate for fixing the situs of the intangible, bearing in mind that nothing is more intangible than the laws respecting the situs of an intangible (Tabacalera Severiano Jorge, S.A. v Standard Cigar Co., 392 F2d 706, 714).

One of the many rules the courts may choose from, in determining the legal situs of an intangible asset, is the rule that the asset travels with the creditor (Severnoe Securities Corp. v London & Lancashire Ins. Co., supra, p 123; Farmers Loan Co. v Minnesota, 280 US 204). That rule is supported by fiscal reality since a debt can only be said to be an asset of the creditor, and not the debtor for whom it is a liability (Railroad Co. v Pennsylvania, 15 Wall [82 US] 300, 320; Farmers Loan Co. v Minnesota, Supra, pp 211-213). Application of that rule to this case would permit the plaintiff to recover since the record does not establish that the creditor-depositor, and thus her intangible asset, was in Cuba at the time of the confiscation. The affirmed factual findings show only that the depositor fled Cuba before the confiscation, and made one or more return trips in early 1959 at unspecified times. There are also affirmed findings that the debt was payable in this State, and thus could be enforced against the bank which also has its headquarters in this State.

The complicating factor is that the facts establish that the debt was payable at any of the bank’s branches anywhere in the world. That, of course, would include the branch it continued to maintain in Cuba at the time of the confiscation and for sometime afterwards, until the Cuban government nationalized its remaining assets. Because of these circumstances the bank and the amicus, New York State Bankers Association, urge that the court adopt the rule that the plaintiff’s intangible asset should be held to have its legal situs where the debtor was located, although they disagree as to whether the rule should extend to all of the branches, as Chase contends, or only to the Cuban branch, as the amicus urges.

The court has applied the rule tendered by the defendant by relying on cases in which the debtor was not present in the confiscating country, or the debt was held not to be payable there (Republic of Iraq v First Nat. City Bank, 353 F2d 47, cert den 382 US 1027; Menendez v Saks & Co., 485 F2d 1355, 1364; United Bank v Cosmic Int., 392 F Supp 262, affd 542 F2d 868, 873; Weston Banking Corp. v Turkiye Garanti Bankasi, A. S., 57 NY2d 315; Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220). Adoption of the rule in those cases placed the intangible beyond the confiscating power and, therefore, leaves open the question as to whether the courts would have found the same rule appropriate if it would have yielded a different result. The question was candidly reserved in the leading case (Republic of Iraq v First Nat. City Bank, 353 F2d 47, cert den 382 US 1027, supra) where the court stated (at p 51): “[I]n the absence of any showing that Irving Trust had an office in Iraq or would be in any way answerable to its courts, we need not consider whether [our] conclusion would differ if it did”. That the selection of the “proper” rule is essentially a policy decision is underscored by the opinion in Menendez v Saks & Co. (485 F2d 1355, revd on other grounds sub nom. Alfred Dunhill of London v Cuba, 425 US 682, supra). In that case the Cuban government urged that the court employ the competing rule, that the debt follows the creditor, and observed that it had been endorsed by the Supreme Court and indeed held constitutionally mandated in another context. The court rejected the argument simply noting that the Supreme Court’s determination with respect to situs was based on different “policy” considerations (see, also, Tabacalera Severiano Jorge, S.A. v Standard Cigar Co., supra).

In sum, the cases employing the rule that an intangible is located where the debtor can be found do not establish a fixed rule of law under the Act of State doctrine and can only be so construed if the policy nature of the decisions is ignored (e.g., Trujillo-M v Bank of Nova Scotia, 51 Misc 2d 689, affd without opn 29 AD2d 847, cert den 393 US 982). What is more significant is that the court’s decision to employ the rule in the prior cases served to “place” the asset within a single country. This is apparently the first case in which the rule has been applied to the Act of State doctrine in such a way as to expose deposits made in an American bank, payable in United States currency at any of its branches worldwide, to confiscation by any country in which the bank maintains a branch office.

This extension of the rule comes at a time when the rule itself has been discarded or abandoned in most, if not all, other areas of American jurisprudence. In recent years the Supreme Court has consistently found constitutionally unacceptable the notion that an intangible asset may be located, and therefore be subject to seizure by a third party, wherever the debt may be enforced against the debtor (see, e.g., Farmers Loan Co. v Minnesota, supra; Texas v New Jersey, 379 US 674; Shaffer v Heitner, 433 US 186; Rush v Savchuk, 444 US 320). In those cases the court has noted in particular that the natural tendency of the rule is to establish multiple situses for the debt, which could leave the creditor in an unfair position. One of the cases recently overruled is our own decision in Seider v Roth (17 NY2d 111).

Similarly the Supreme Court’s most recent decisions with respect to the Act of State doctrine, all of which have been pluralities, also limit its application and call into question many of the premises on which it rests (see First Nat. City Bank v Banco Nacional de Cuba, 406 US 759, supra; Alfred Dunhill of London v Cuba, 425 US 682, supra). The Supreme Court has never considered whether for the purposes of the Act of State doctrine an intangible bank asset may be said to be present wherever the debt is enforceable against the bank. It is interesting to note, however, that the cases holding the rule applicable in that context have relied on older Supreme Court decisions (e.g., Harris v Balk, 198 US 215), which, as noted above, have recently been overruled by that court. The majority has admittedly relied on the overruled cases in the case now before us. Therefore, acceptance of the bank’s position in this case resurrects dead concepts, extends the Act of State doctrine far beyond the Supreme Court’s holdings and creates a kind of international Seider v Roth.

In a narrow sense the Supreme Court’s recent decisions rejecting the rule that a debt has its situs wherever it can be enforced against the debtor are distinguishable because they deal with the jurisdiction of the States, as opposed to that of foreign countries. Our courts, of course, cannot place jurisdictional limitations on foreign governments, as they can with respect to the States. But the broader principle the cases stand for is that the courts can and should reject the legal fiction of a ubiquitous debt or one which roves with the debtor, when the rule is capable of producing unfair results between private litigants. That is a principle which can be enforced even when the private suit has been prompted by the confiscatory act of a foreign State.

Judicial deference to the Act of State dpctrine can be accomplished in this case by ignoring legal fictions concerning intangibles and focusing instead on the fact that the only assets physically seized were those belonging to the bank. There is no doubt that the Act of State doctrine precludes the courts from considering the legality of Cuba’s act in seizing the bank’s assets. The court must accept, as a fact, that the title to the assets passed to the Cuban authorities and that they cannot be recovered from that government or from those to whom it may transfer the assets (see, e.g., Oetjen v Central Leather Co., supra; Banco Nacional de Cuba v Sabbatino, supra). With that issue Out of the case the fact remains that the bank has sustained a loss which it now seeks to shift to the depositor by refusing to pay the account. In my view it should not be permitted to do so.

The essence of the relationship between the parties is that the bank agreed to safeguard the depositor’s money. It did so in the midst of a revolution by accepting deposits from a person whose husband was an official in the government under attack. The bank specifically agreed that the certificates would be redeemed at any of its branches, most of which are in this country, and further agreed to pay in United States currency. Even after the revolution had succeeded, the bank remained in Cuba and maintained assets all of which could have been, and in fact ultimately were, confiscated by the Cuban government. Under these circumstances it could be said that the bank was fully aware of and accepted the risk of confiscation of its assets, and should not be permitted to refuse to honor its commitment to this depositor after her arrival in this country.

Accordingly, I would affirm the order of the Appellate Division.

Judges Jasen, Jones, Meyer and Simons concur with Judge Kaye; Judge Wachtler dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.

On defendant’s appeal, order reversed, without costs, and judgment of Supreme Court, New York County, reinstated. Plaintiff’s appeal dismissed, without costs. 
      
      . Although another aspect of Harris v Balk has been overruled (see Shaffer v Heitner, 433 US 186), the debt-situs holding remains unimpaired.
     
      
      . The Appellate Division’s conclusion that “the Act of State doctrine * * * apparently never has been, applied to relieve an American bank of obligations owed by its branches to depositors” (93 AD2d, p 409) ignores the thrust of the decision in Trujillo. While the bank in Trujillo was a Canadian bank, the question presented was the liability of its New York office to repay deposits confiscated from one of its foreign branches pursuant to an order directed at plaintiff’s accounts. The court in Trujillo determined that under the Act of State doctrine the bank could not be liable to plaintiff on his subsequent demand for repayment.
     
      
      . Given this result, we do not reach the applicability of subdivision 1 of section 138 and section 204-a (subd 3, par [a]) of the Banking Law. We note that in Garcia v Chase Manhattan Bank (SDNY, June 7, 1983), a case similar on its facts, the Federal District Court found the Act of State doctrine inapplicable “since the situs of Chase’s obligation to plaintiff was outside of the jurisdiction of Cuba,” citing as its authority the Appellate Division decision which we now reverse. Garcia on March 28,1984 was affirmed by the Court of Appeals for the Second Circuit.
     
      
      . The Trial Term decision denying recovery to plaintiff is in fact cited in Vishipco (660 F2d 854, 863), and the court points out the factual distinction between the two cases.
     
      
      . The dissent misapprehends our holding. We hold that in the circumstances disclosed in this record as crystallized by the verdict of the jury, the rights of plaintiff evidenced by the certificates of deposit issued by Chase were located in Cuba at the time of the confiscation specifically directed against Manas’ assets, and that this act of the Cuban government is beyond our review. We do not hold that any purported confiscation by a foreign sovereign of deposits at American bank branches would be accorded similar effect. The certificates here were both issued and payable in Cuba, and therefore subject to enforcement and collection by the foreign sovereign. The circumstance that the Chase branch in Cuba was nationalized a year after confiscation of the certificates is irrelevant.
     