Opinion
No. 25753.
Petition for Rehearing en Banc Filed September 10, 1959. Decided November 12, 1959.
Spar, Schlem Burroughs, New York City (Charles Spar and Leon B. Savetsky, New York City, of counsel), for plaintiff.
Reid Priest, New York City (Ralph M. McDermid, New York City, of counsel), for defendants.
Before CLARK, Chief Judge, and LUMBARD, WATERMAN, MOORE and FRIENDLY, Circuit Judges.
The petition to vacate our order of August 28, 1959, is denied by the court sitting en banc. Upon reconsideration we find that the application for leave to appeal was timely inasmuch as it was made to us within 10 days of the order of the district judge that contained the 28 U.S.C. § 1292(b) statement. Because in our judgment the grant of leave to appeal will not fulfill the purpose expressed in the statute, we, in our discretion, adhere to our previous decision denying leave to appeal.