Lowry v. LONG ISLAND RAIL ROAD COMPANY
| Decision Date | 30 December 1966 |
| Docket Number | No. 212,Docket 30782.,212 |
| Citation | 370 F.2d 911 |
| Parties | Jasper L. LOWRY, Plaintiff-Appellant, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Milford J. Meyer, Philadelphia, Pa. (Lester Yudenfriend, New York City, on the brief), for plaintiff-appellant.
William F. McNulty, New York City (George M. Onken, Jamaica, N. Y., on the brief), for defendant-appellee.
Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
Jasper L. Lowry appeals from a January 26, 1966 judgment and a May 4, 1966 order of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, which respectively dismissed his complaint for insufficiency of evidence of negligence and causation and denied his motion for a new trial, and from an order of July 1, 1966 denying his petition for extension of time to appeal. We find no error in the denial of the petition for extension of time, affirm the order of denial and dismiss the appeal from the judgment dismissing the complaint and order denying new trial.
Appellant sued appellee, the Long Island Rail Road Company, under Sec. 51 of the Federal Employers' Liability Act, 45 U.S.C. § 51, for personal injuries sustained in the course of employment. At the close of plaintiff's case on trial, judgment was entered dismissing the action. Plaintiff timely filed a motion for new trial, which was denied on May 4, 1966. On June 29 plaintiff moved for extension of time to appeal, alleging that no notice of the May 4 order was received by his counsel, and counsel first learned of its entry on June 13. Since more than 30 days elapsed between the denial on May 4, 1966 of plaintiff's motion for new trial and the filing of the notice of appeal July 1, 1966, the appeal on the merits is untimely and must be dismissed unless this court finds error in the July 1, 1966 denial of the petition for extension of time in which to appeal.
The petition for extension, apparently made June 29 and filed July 1, claimed excusable neglect, based on failure to learn of the May 4 denial until June 13. Judge Tenney denied the petition, assuming, although expressing some doubt on the question, that notice of entry of the May 4 judgment was not received in the mail and that first knowledge thereof came to plaintiff's counsel on June 13. In the absence of any explanation whatever of the 16-day delay after June 13, however, he refused to find...
To continue reading
Request your trial
-
Fase v. Seafarers Welfare & Pension Plan, s. 217
...377 F.2d 247, 251, 254-55 (8th Cir. 1967); see Gooch v. Skelly Oil Co., supra, 493 F.2d at 368 ("real showing"); Lowry v. Long Island R.R., 370 F.2d 911, 912 (2d Cir. 1966), and, finally, that "(c)ourts should sanction deviations from the letter of the rules only on the most compelling show......
-
U.S. v. Koziel, s. 621
... ... F.2d 861, 863 (2d Cir.1982) (per curiam); Lowry v. Long Island R.R., 370 F.2d 911, 912 (2d ... ...
-
Chipser v. Kohlmeyer & Co.
...Co., 570 F.2d 1202, 1206-07 (5th Cir.), Cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978); Lowry v. Long Island Rail Road, 370 F.2d 911, 912 (2d Cir. 1966); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice & Procedure § 3950, at 367 (1977). The "excusable neg......
-
O.P.M. Leasing Services Inc., In re
...took. Appellee relies in opposition on the principle established by many cases, of which it suffices to cite Lowry v. Long Island R.R., 370 F.2d 911, 912 (2 Cir.1966), and Fase v. Seafarers Welfare & Pension Plan, 574 F.2d 72, 77 (2 Cir.1978), and not disputed by appellants, that the standa......