157 F.2d 417 (2nd Cir. 1946), 272, Joint Council Dining Car Emp. Local 370, Hotel and Restaurant Emp. Intern. Alliance v. Delaware, L. & W. R. Co.

Docket Nº:272, 20185.
Citation:157 F.2d 417
Party Name:JOINT COUNCIL DINING CAR EMPLOYEES LOCAL 370, HOTEL AND RESTAURANT EMPLOYEES INTERNATIONAL ALLIANCE, et al. v. DELAWARE, L. & W. R. CO.
Case Date:July 15, 1946
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 417

157 F.2d 417 (2nd Cir. 1946)

JOINT COUNCIL DINING CAR EMPLOYEES LOCAL 370, HOTEL AND RESTAURANT EMPLOYEES INTERNATIONAL ALLIANCE, et al.

v.

DELAWARE, L. & W. R. CO.

Nos. 272, 20185.

United States Court of Appeals, Second Circuit.

July 15, 1946

Page 418

Hope R. Stevens, of New York City, for plaintiffs-appellants.

Page 419

Harold J. Gilmartin, of New York City (Rowland L. Davis, Jr., of New York City, on the brief), for defendant-appellee.

Before CHASE, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This appeal involves an interesting question as to the effect of an express limitation upon a special statutory remedy where failure to institute suit more promptly is sought to be explained as a consequence of the celebration of 'V-J Day' authorized by the President of the United States in connection with the victory in the Pacific. The action here is on an award of the Third Division of the National Railroad Adjustment Board made against the defendant railroad. The award appears as an order of the Division of June 11, 1943- made a part of the complaint as an exhibit thereto- which directed the railroad to make reimbursement to certain dining car employees for free meals required under the employment contract, the payments to be made 'on or before August 16, 1943.' The action was actually commenced by filing of the complaint and service of summons on August 17, 1945. This the District Court held not within the two-year period allowed by the statute. Accordingly it granted the defendant's motion under Federal Rules of Civil Procedure, rule 12(b), 28 U.S.C.A.following section 723c, to dismiss the plaintiffs' 'petition, ' i.e., complaint.

The controlling statutory provisions are found in the Railway Labor Act, Sec.§ 3(p, g), 45 U.S.C.A. § 153(p, g). Subdivision (p) provides that 'if a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file' in the appropriate District Court of the United States a petition claiming relief and setting forth the division's order. After provisions for precedence in trial, for prima facie effect of the division's findings and order as evidence of the facts, for the petitioner's nonliability for costs, except on appeal, and for allowance to him of a reasonable attorney's fee in the event of success, the statute empowers the district court to enter such judgments as may be appropriate to enforce or set aside the order. Subdivision (q) then states: 'All actions of law based upon the provisions of this section shall be begun within two years from the time the cause of action accrues under the award of the division of the Adjustment Board, and not after.' Here plaintiffs had alleged that by failure of the carrier 'to comply with the order within the time limit set in the order, namely, August 16, 1943, a cause of action accrued to the petitioners on said date'; and the trial court, accepting this date, held that the statute permitted of no exception, and hence that the action was begun one day beyond the ultimate time allowed.

From the affidavits of the parties, filed for and available on the hearing of this motion, F.R.6(d), 43(e); Samara v. United States, 2 Cir., 129 F.2d 594, 599, certiorari denied 317 U.S. 686, 63 S.Ct. 258, 87...

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