Herman Schwabe, Inc. v. United Shoe Machinery Corp., No. 75

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , and HAND and SWAN, Circuit
Citation274 F.2d 608
PartiesHERMAN SCHWABE, INC., Appellant, v. UNITED SHOE MACHINERY CORPORATION, Appellee.
Docket NumberDocket 25746.,No. 75
Decision Date20 January 1960

274 F.2d 608 (1960)

HERMAN SCHWABE, INC., Appellant,
v.
UNITED SHOE MACHINERY CORPORATION, Appellee.

No. 75, Docket 25746.

United States Court of Appeals Second Circuit.

Argued November 12, 1959.

Decided January 20, 1960.


James M. Malloy, Ralph Warren Sullivan, Morton Myerson, Boston, Mass., Sigmund

274 F.2d 609
Moses, New York City, Malloy, Sullivan & Myerson, Boston, Mass., of counsel, for appellant

Ralph M. Carson, Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for defendant-appellee.

Before LUMBARD, Chief Judge, and HAND and SWAN, Circuit Judges.

HAND, Circuit Judge.

This is an appeal under § 1292(b) from a "partial summary judgment" 23 F.R.D. 253 of the District Court for the Eastern District of New York, Zavatt, J. presiding, dismissing under Rule 56(b) so much of the plaintiff's claim as accrued before May 27, 1953. The complaint, filed May 27, 1957, was to recover treble damages for a violation of § 15 of Title 15 U.S.C.A. (the Clayton Act). It prayed for damages from 1939, resulting from the defendant's monopoly in the shoe machinery business, to which the defendant alleged as a partial defense that the plaintiff could in no event recover for damages occurring earlier than four years before the action was commenced. Judge Zavatt so held, on the ground that the amendment of the Clayton Act of July 7, 1955 — effective January 7, 1956 — so provided.

Before that amendment it is agreed that the law of the state where the claim arose determined the limitation upon actions brought under § 15. Section 16 of the Act of 1914 (the Clayton Act), had provided that the pendency of a suit by the United States to enforce § 15 should suspend the "running of the statute of limitations in respect of each and every private right of action * * * during the pendency thereof," and § 16 (b) of the amendment of 1955 changed this provision by adding after the phrase "during the pendency thereof" the words, "and for one year thereafter." A proviso to § 16(b) declared that where the running of a statute against a private action had been so suspended the private action "shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued." The Act of 1955 was passed on July 7, 1955, but did not go into effect till January 7, 1956.*

274 F.2d 610

A suit by the United States upon the same "cause of action" as that at bar was pending between December 15, 1947 and June 23, 1954; and the plaintiff argues that the period of limitation of the action at bar is the period of pendency of the United States suit plus four years after it had ended. Furthermore, it argues that, since it brought suit on May 27, 1957 it was entitled to go back of the pendency of the United States suit for the difference between four years and the period between the end of the suspension, — June 23, 1954 — and the filing of the action at bar, May 27, 1957. That difference was two years, eleven months and four days, leaving a period of one year and twenty-six...

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13 practice notes
  • Weise v. Syracuse University, Nos. 372
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 14, 1975
    ...River Power Co. v. Federal Power Commission, 455 F.2d 86, 90 (2d Cir. 1972); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 274 F.2d 608, 610 (2d Cir.), Cert. denied, 363 U.S. 811, 80 S.Ct. 1247, 4 L.Ed.2d 1153 (1960). In Brown, we reviewed the legislative history of the 1972 amendmen......
  • Monell v. Department of Social Services of City of New York, No. 407
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 8, 1976
    ...River Power Co. v. Federal Power Commission, 455 F.2d 86, 90 (2d Cir. 1972); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 274 F.2d 608, 610 (2d Cir.), cert. denied, 363 U.S. 811, 80 S.Ct. 1247, 4 L.Ed.2d 1153 (1960)." 522 F.2d at We see no valid ground for distinguishing the se......
  • Union Carbide and Carbon Corporation v. Nisley, No. 6319-6322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 26, 1962
    ...D.C., 168 F.Supp. 919. In that respect, our cases are factually different from Herman Schwabe, Inc. v. United Shoe Machinery, 2 Cir., 274 F.2d 608; United Shoe Machinery v. International Shoe Machinery Corp., 1 Cir., 275 F.2d 459, where the private suits were commenced more than one year af......
  • Donahue v. Pendleton Woolen Mills, Inc., No. 84 Civ. 7149(RJW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 21, 1986
    ...by Judge Hand, long ago rejected just such a whimsical reading of the statute. Herman Schwabe, Inc. v. United Shoe Machinery Corp., 274 F.2d 608, 610 (2d Cir.1960), cert. denied 363 U.S. 811, 80 S.Ct. 1247, 4 L.Ed.2d 1153 (1960); see also Stewart Aviation Co. v. Piper Aircraft Corp., 372 F.......
  • Request a trial to view additional results
13 cases
  • Weise v. Syracuse University, Nos. 372
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 14, 1975
    ...River Power Co. v. Federal Power Commission, 455 F.2d 86, 90 (2d Cir. 1972); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 274 F.2d 608, 610 (2d Cir.), Cert. denied, 363 U.S. 811, 80 S.Ct. 1247, 4 L.Ed.2d 1153 (1960). In Brown, we reviewed the legislative history of the 1972 amendmen......
  • Monell v. Department of Social Services of City of New York, No. 407
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 8, 1976
    ...River Power Co. v. Federal Power Commission, 455 F.2d 86, 90 (2d Cir. 1972); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 274 F.2d 608, 610 (2d Cir.), cert. denied, 363 U.S. 811, 80 S.Ct. 1247, 4 L.Ed.2d 1153 (1960)." 522 F.2d at We see no valid ground for distinguishing the sex-dis......
  • Union Carbide and Carbon Corporation v. Nisley, No. 6319-6322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 26, 1962
    ...D.C., 168 F.Supp. 919. In that respect, our cases are factually different from Herman Schwabe, Inc. v. United Shoe Machinery, 2 Cir., 274 F.2d 608; United Shoe Machinery v. International Shoe Machinery Corp., 1 Cir., 275 F.2d 459, where the private suits were commenced more than one year af......
  • Donahue v. Pendleton Woolen Mills, Inc., No. 84 Civ. 7149(RJW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 21, 1986
    ...by Judge Hand, long ago rejected just such a whimsical reading of the statute. Herman Schwabe, Inc. v. United Shoe Machinery Corp., 274 F.2d 608, 610 (2d Cir.1960), cert. denied 363 U.S. 811, 80 S.Ct. 1247, 4 L.Ed.2d 1153 (1960); see also Stewart Aviation Co. v. Piper Aircraft Corp., 372 F.......
  • Request a trial to view additional results

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