Opinion
No. 98.
November 16, 1942.
Appeal from the District Court of the United States for the Southern District of New York.
Proceeding on motion by Jesse Matthews against Mathias F. Correa for return of papers seized at the time movant was arrested under a warrant. From order directing United States attorney to return such of the papers as attorney in his sole discretion shall deem himself not entitled to retain, movant appeals.
Appeal dismissed.
Henry E. Coleman, of New York City, for appellant.
Bruno Schachner, of New York City, for appellee.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
The order appealed from provided that the United States Attorney should "return to the defendant * * * such of the papers mentioned and described in the notice of motion herein, as he, in his sole discretion, shall deem himself not entitled to retain." "If the defendant shall deem herself entitled to any of the papers retained" she was "given the right to again move for the turning over of said papers." The record does not disclose what, if any, of the papers seized the United States Attorney has "retained"; and, although the appellant's brief declares that he has in fact "retained" certain papers which it mentioned, we cannot consider the statement, for not only is it not part of the record, but the contents of the papers so retained does not sufficiently appear.
The order is not appealable because it is interlocutory; the defendant should avail herself of the leave given and should move in the district court, stating in detail the character of the papers retained, and why she is entitled to their return.
Appeal dismissed.