Opinion
No. 159, Docket 24297.
Argued February 6, 1957.
Decided April 25, 1957.
Morris Wagman, New York City, for defendant-appellant.
Foster Bam, Asst. U.S. Atty., S.D.N.Y., New York City (Paul W. Williams, U.S. Atty., New York City, on the brief), for plaintiffs-appellees.
Before CLARK, Chief Judge, MEDINA, Circuit Judge, and J. JOSEPH SMITH, District Judge.
In this action by eleven employees of defendant to recover increased wages which they claim they would have been entitled to receive had they remained at work instead of entering the armed forces, Judge Dimock granted a summary judgment holding that plaintiffs were entitled to the claimed increases; but he did not then fix the amounts, saying in his opinion, D.C.S.D.N.Y., 143 F. Supp. 169, 170: "The parties are agreed that, if summary judgment is granted the question of the actual dollar amount which each plaintiff should receive shall await subsequent determination by the parties and, if necessary, this court. Rule 56(d), F.R.C.P." No formal judgment or further action by the court has been entered.
Judge Dimock's citation demonstrates what the facts disclose, namely, that this is but "a partial summary judgment," which, under well settled rules, is not appealable. See Tye v. Hertz Drivurself Stations, 3 Cir., 173 F.2d 317, an action for overtime compensation, and see also, e.g., King v. California Co., 5 Cir., 224 F.2d 193; Wynn v. Reconstruction Finance Corp., 9 Cir., 212 F.2d 953, 955-957; Audi Vision, Inc., v. RCA Mfg. Co., 2 Cir., 136 F.2d 621, 147 A.L.R. 574; 6 Moore's Federal Practice 2311 (2d Ed. 1953). We must raise the question even though the parties have not. Tye v. Hertz Drivurself Stations, supra, 3 Cir., 173 F.2d 317. Appeal is therefore premature, before the amount of recovery is fixed.
Appeal dismissed.