Opinion
Action by a foreign government and others to recover a sum on deposit with defendant bank in the name of a claimed agency of such government, against which defendant asserted two counterclaims. On plaintiffs' motions for leave to reargue and amend the counterclaims after a judgment dismissing them, 108 F.Supp. 766, the District Court, Irving R. Kaufman, J., held that the motion for reargument, made over ten days after entry of the judgment, was untimely, and that the motion for leave to amend must be denied, in absence of a motion within such time to reopen the judgment.
Motions denied.
Kirlin Campbell & Keating, New York City, Cletus Keating, New York City, Robert E. Kline, Jr., Washington, D.C., and Louis J. Gusmano, New York City, of counsel, for plaintiff Republic of China.
Shearman & Sterling & Wright, New York City, Chauncey B. Garver and W. Harvey Reeves, New York City, of counsel, for defendant.
IRVING R. KAUFMAN, District Judge.
The motion for leave to reargue and for leave to amend the counterclaims and for other relief is denied. The opinion in the instant case was filed on December 22, 1952, 108 F.Supp. 766. The order of this Court dismissing the counterclaims was filed on January 9, 1953 and judgment was entered on that date. Regardless of whether Rule 9(h) of the General Rules for the Southern District of New York or Rule 59 of the Federal Rules of Civil Procedure, 28 U.S.C.A., govern the time within which this motion for reargument might be brought, it is clear that this motion is untimely. The motion for leave to amend stands in no better position than the motion for reargument for ‘ * * * the judgment of dismissal should be reopened before an amendment to the complaint [here a counterclaim] is granted. Such relief can be sought within ten days under Federal Rules of Civil Procedure, rule 59, 28 U.S.C.A. * * *.’ Markert v. Swift & Co., 2 Cir., 1949, 173 F.2d 517, 519. Moreover, the petitioner has filed an appeal from the judgment, so that this Court now lacks power to grant the relief sought. Daniels v. Goldberg, D.C.S.D.N.Y.1948, 8 F.R.D. 580, affirmed 2 Cir., 1949, 173 F.2d 911.
Motions denied.