Opinion
No. 68, Docket 20333.
November 4, 1946.
Appeal from the United States District Court for the Southern District of New York.
Action by Photometric Products Corporation against Albert A. Radtke and others, charging defendants with conspiracy to deprive plaintiff of its rights to a patent. From an order of the District Court, 5 F.R.D. 394, denying plaintiff's motion to substitute Robert Bruce Day, as executor of the estate of Leonard Day, deceased, as a party defendant in place of Leonard Day, deceased, on ground that under Federal Rules of Civil Procedure, rule 25(a)(1), 28 U.S.C.A. following section 723c, any substitution of a representative of a deceased party must be within two years after latter's death and more than two years had elapsed before motion for substitution was made, plaintiff appeals.
Appeal dismissed.
Harry Meisnere, of New York City (Milton C. Jacobs, of New York City, on the brief), for plaintiff-appellant.
R.W. Perkins and John B. Cunningham, both of New York City, for defendant-appellee, Warner Bros. Pictures, Inc.
Henry Turin, of New York City, for defendant-appellee, Radtke Patents Corp.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
The defendants Radtke, Warner Brothers Pictures, Inc., and Leonard Day, are charged with conspiring with the Radtke Patents Corp. to deprive the plaintiff of its asserted rights to a patent in a complaint which set forth various grounds for relief. The plaintiff moved to substitute Robert Bruce Day as executor for Leonard Day who died more than two years before the making of the motion which was denied on the ground that under Rule 25(a)(1) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the motion would not lie. The plaintiff has appealed from the order denying its motion for substitution. An appeal will not lie when divers defendants are sued for wrongs jointly committed until the suit is decided against all the defendants. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443; Studer v. Moore, 2 Cir., 153 F.2d 902; Hunteman v. New Orleans Public Service, 5 Cir., 119 F.2d 465; cf. Reeves v. Beardall, 316 U.S. 283, 286, 62 S.Ct. 1085, 86 L.Ed. 1478. The present appeal comes within the purview of these decisions.
Appeal dismissed.