I concur in the opinion of Mr. Justice Finch. The notice served by the Alien Property Custodian on or about June 26, 1919, must be regarded as constituting the seizure of all sums then or thereafter due to Mutzenbecher for commissions. The Federal government, under the power given by the Trading with the Enemy Act, captured those sums just as effectively as though they had been found in the possession of Mutzenbecher and taken from him. Under this war measure, its title became paramount without the aid of any judicial determination (Stoehr v. Wallace, 255 U. S. 239), and cannot be questioned except by way of the procedure stated in that act. Therefore, before the Superintendent of Insurance, as liquidator, undertook to deal with the funds of the insurance company, the rights of the Alien Property Custodian to the fruits of Mutzenbecher’s contract had become fixed. These funds were then government property. Had the war lasted, these moneys, like any other property of the government, might have been employed in the conduct of the war. The Federal government alone has dominion over them.
It is of no moment that Congress, since the Treaty of Peace with Germany (42 U. S. Stat. at Large, 1939), has enacted that only twenty per cent thereof is to be held by the United States government. (See Settlement of War Claims Act of 1928 [45 U. S. Stat. at Large, 272], § 14, amdg. Trading with the Enemy Act, § 9, as amd.) The Alien Property Custodian, having made the seizure, was chargeable with the amount so captured and has properly *310entered this peace-time proceeding so that the property could not be disposed of in violation of his rights.
The Trading with the Enemy Act has not been repealed nor did it cease to be operative upon the cessation of the war. (Commercial Trust Co. v. Miller, 262 U. S. 51.) On the contrary, it stands as legislation dealing with enemy property and conferring powers which can be exercised forthwith if the United States shall become involved in any future war. No judicial decision should be made which can be viewed as a limitation upon the sweeping and summary powers conferred by that enactment.
Dowling, P. J., and Merrell, J., dissent.
Order modified by deducting the amount allowed by way of interest in excess of that received by the Superintendent of Insurance, and as so modified affirmed, without costs. Settle order on notice.