Kozemchak v. Ukrainian Orthodox Church of America, 804
| Decision Date | 03 June 1971 |
| Docket Number | Docket 71-1060.,No. 804,804 |
| Citation | 443 F.2d 401 |
| Parties | Michael KOZEMCHAK, Philip Pronzen, and Archady Lehach, as the Board of Trustees of St. Andrew's Ukrainian Orthodox Church of Bridgeport, Connecticut, Plaintiffs-Appellants, v. The UKRAINIAN ORTHODOX CHURCH OF AMERICA and The Most Reverend Bishop Andrei Kuschak, Ruling Bishop of the Ukrainian Orthodox Church of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
John F. Grimes, Staten Island, N. Y. (Connolly & Grimes, Staten Island, N. Y., on the brief), for plaintiffs-appellants.
Lawrence Anderson, New York City, for defendants-appellees.
Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges.
In 1953 the Mission Society of the Diocese of Connecticut conveyed to the defendant Ukrainian Orthodox Church of America certain real property located in Bridgeport, Connecticut. The property was used by the St. Andrew's Parish until 1969 when it was taken in condemnation by the State of Connecticut. An award of $290,000.00 was paid to the defendants. The plaintiffs brought suit alleging that the Parish of St. Andrew's was entitled to the benefit of the condemnation award. The court dismissed the complaint for failure to state a claim on which relief could be granted, but gave leave to the plaintiffs to amend within twenty days "if it is contended that a special, express trust was imposed as part of the original grant or in connection with it."
The order of the district court is not a final judgment and we therefore lack jurisdiction to hear the appeal. "A dismissal of a complaint by the district court with leave to the plaintiff to amend is not a final decision." Atwater v. North American Coal Corp., 111 F.2d 125 (2d Cir. 1940); American Broadcasting Co. v. Wahl Co., 121 F.2d 412, 413 (2d Cir. 1941).
Plaintiffs have expressed concern at what they consider to be an unwarranted limitation on the type of amendment to the complaint which will be allowed by the district court. We dismiss the appeal without prejudice to plaintiffs' filing, within 20 days from the date of this decision, an amended complaint without prior limitation on the manner in which the complaint is to be amended.
Appeal dismissed.
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...Acres of Land, More or Less, 506 F.2d 796 (3d Cir.1974); Foster v. Herley, 491 F.2d 174 (6th Cir.1974); Kozemchak v. Ukrainian Orthodox Church of Am., 443 F.2d 401 (2d Cir.1971), we are aware of no federal court case in which a religious organization has challenged the taking of real proper......
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...with leave to amend are not final decisions under 28 U.S.C. § 1291 (1982) and are thus not appealable. Kozemchak v. Ukrainian Orthodox Church of America, 443 F.2d 401 (2d Cir.1971). Similarly, injunctions pendente lite are not final orders but are interlocutory under 28 U.S.C. § 1292(a)(1) ......
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