Opinion
Civ. Nos. 28316, 29473.
January 22, 1957.
Marcus Cohn, Cohn Marks, Paul Porter, Arnold, Fortas Porter, Washington, D.C., Herbert A. Rosenthal and Paul Roesch and William P. Clyne, Cleveland, Ohio, for plaintiff.
Morris Berick (of Burke, Haber Berick), Cleveland, Ohio and Raymond T. Jackson, Howard F. Burns, and Warren Daane (of Baker, Hostetler Patterson), Cleveland, Ohio, for defendants.
In these companion cases, the plaintiffs petition the Court for an order, pursuant to Rule 25, F.R.Civ.P., 28 U.S.C.A. substituting Harry R. Horvitz, William D. Horvitz and Francis E. Kane, executors of the estate of Samuel A. Horvitz, as party defendants.
Without burdening the parties with a detailed consideration of the questions of law raised upon oral hearing and in the excellent briefs submitted, this Court is constrained to follow the decision of its learned colleague, Judge Kloeb, in the case of Reid v. Doubleday Co. et al., 109 F. Supp. 354, decided December 30, 1952. Based upon that finding, the present motion of the plaintiffs to substitute the executors of Samuel A. Horvitz as party defendants, is hereby granted.
With respect to the issue raised by the defendants in the alternative as to the degree of liability of the executors for damages, whether it be actual or treble, the Court is of the opinion that that question should more properly be determined by the trial Judge, and hence there is no finding made on that issue.