Opinion
No. 23, Docket 20249.
November 4, 1946.
Appeal from the District Court of the United States for the Southern District of New York.
Action by Paul A. Porter, Administrator, Office of Price Administration, against American Distilling Company, Incorporated, and others, for injunction against violation of maximum price regulations, treble damages, fraud, and deceit. The motions of defendants American Distilling Company, and of Russell R. Brown, Henry C. Cole, Sam Rothberg, Thomas S. Brown, Stewart M. Seymour, William H. Damour, and of Peter E. Siskind, and of Stanhope Foster, Samuel L. Westerman and Sidney Kessler, individually and as copartners doing business as Foster Co., to dismiss Counts 1 and 2 of the amended complaint were denied, and to dismiss Count 3 were granted, 62 F. Supp. 20, on the ground that the court was without jurisdiction because of the plaintiff's incapacity to sue. The action still remained pending against these defendants upon Counts 1 and 2 and was undisposed of as to certain other defendants as to all three counts. The plaintiff appeals from the orders, four in number, dismissing his claims under Count 3.
Appeals dismissed.
See also 62 F. Supp. 15.
Albert M. Dreyer, Sol., George Moncharsh, Deputy Administrator for Enforcement, Milton Klein, Director, Litigation Division, David London, Chief, Appellate Branch, and Ernest Cook, Atty., Office of Price Administration, all of Washington, D.C., Kenneth Fisher, Regional Litigation Atty., and William Sardell, Chief, Opinion and Research Branch, Office of Price Administration, both of New York City, of plaintiff-appellant, Paul Porter.
John J. Burns and Reed, Truslow, Crane deGive, all of New York City (John J. Burns and William G. Mulligan, both of New York City, of counsel), for defendant-appellee, American Distilling Co.
William B. Herlands, of New York City (William B. Herlands and Herbert S. Herlands, both of New York City, of counsel), for defendants-appellees, Russell R. Brown, Henry C. Cole, Sam Rothberg, Thomas S. Brown, Stewart M. Seymour, and William H. Damour.
Edwin M. Slote, of New York City (Max E. Lynne, of New York City, of counsel), for defendant-appellee Peter E. Siskind.
Garey, Desvernine Kissam, of New York City (Jacob J. Rosenblum, Wm. Francis Corson, and Abraham Hornstein, all of New York City, of counsel), for defendants-appellees Stanhope Foster and Samuel L. Westerman individually, and Stanhope Foster, Samuel L. Westerman, and Sidney Kessler, as copartners doing business as Foster Co.
Powers, Kaplan Berger, of New York City (Samuel A. Berger, of New York City, of counsel), for defendant-appellee Sidney Kessler, individually.
Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.
The dismissal of Count 3 only affected certain of the many defendants who were sued jointly upon that count. The orders left Count 3 undisposed of as to various other defendants sued jointly and were not therefore final and hence not appealable. 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.
Appeals dismissed.