Piascik v. Trader Navigation Co., 103
| Decision Date | 30 December 1949 |
| Docket Number | No. 103,Docket 21479.,103 |
| Citation | 178 F.2d 886 |
| Parties | PIASCIK v. TRADER NAVIGATION CO., Ltd., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Jacob Rassner, of New York City, for plaintiff-appellant.
Reid, Cunningham & Freehill, of New York City (Frederick H. Cunningham, of New York City, of counsel), for defendants-appellees.
Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.
This case well illustrates the procedural difficulties which may develop in a dilatorily conducted litigation. On June 11, 1943, plaintiff brought this action for the death of her husband September 10, 1941, from injuries sustained by him on August 21, 1941, in the performance of his duties as a seaman on the S. S. "Scottish Trader." She named three as defendants, two as British corporations or "entities" and one as a New York corporation; and as to each she alleged in successive paragraphs that it "navigated, operated, managed and controlled" the vessel at the time, that the officers and crew were in its "employ," and that the decedent was employed aboard "as a seaman in the capacity of a longshoreman." The British Ministry of War Transport successfully claimed immunity, Piascik v. British Ministry of War Transport, D.C.S.D.N.Y., 54 F.Supp. 487, and on January 5, 1944, was dismissed as a party defendant. On February 7, 1944, the questions raised by the special appearance and motion to set aside the service of the other two defendants, Simpson, Spence & Young and Trader Navigation Company, Ltd., were referred to a Special Master for hearing and report. After several motions by defendants for vacation of the proceedings because of plaintiff's delays, the master eventually took evidence here and, by commission, from England, and then on January 24, 1946, filed his report recommending the entry of an order setting aside the service upon the Trader Company.
In his report the master pointed out that any issue as to service on Simpson, Spence & Young had been eliminated because this firm (actually a partnership) was at issue with the plaintiff, and went on to state that, as stipulated, the question before him was whether or not a valid service on a Simpson partner would be a good service upon Trader. Then, reviewing the evidence, he found that the firm, which was engaged in the business of ship chartering and brokerage in New York City, had done "but very little business" with Trader, never any as to this particular ship, which was later sunk, and none for any Trader vessels from probably 1940 and certainly 1941 through 1944. Referring to the requirements for local jurisdiction stated in Jacobowitz v. Thomson, 2 Cir., 141 F.2d 72, and other cases, he held that the firm was neither a general nor a managing agent for Trader and further that Trader was not doing business in New York. These conclusions led of course to his recommendation above stated. The district court confirmed the report and on March 18, 1946, entered its order setting aside the service upon Trader and directing that its name be stricken from the caption of the action. On May 3, 1946, plaintiff filed her notice of appeal from this order, identifying it by date and by description of its contents. Our present jurisdiction depends upon this notice of appeal.
The record before us shows, however, further developments. Plaintiff did not take steps to advance the appeal until late November, 1948.1 At that time she obtained an order from this court (with defendants' counsel not present as he asserts) extending the time for filing her record to December 29, 1948. Later it was extended still further by stipulation. Meanwhile on December 11, 1947, the district court had dismissed the entire action for...
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Snyder v. Buck
...St. Luke's Hospital v. Melin, supra, 172 F.2d at page 533. Compare Crump v. Hill, 5 Cir., 1939, 104 F.2d 36, with Piascik v. Trader Navigation Co., 2 Cir., 1949, 178 F.2d 886. 4. Accord, Nudelman v. Globe Varnish Co., 1941, 312 U.S. 690, 61 S.Ct. 621, 85 L.Ed. 5. It seems that plaintiff wou......
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Youpe v. Moses
...United States Pharmacopoeial Convention, 198 F.2d 470 (9th Cir.1952), decided in view of Section 1291 of Title 28; Piascik v. Trader Navigation Co., 178 F.2d 886 (2d Cir.1949), also decided under Section 1291 of Title 28; Markham v. Kasper, 152 F.2d 270 (7th Cir. 1945), decided under 28 U.S......
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Cook v. Bostitch, Inc.
...quashes service as to all. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 264, 13 S.Ct. 590, 37 L.Ed. 443; Piascik v. Trader Navigation Co., 2 Cir., 178 F.2d 886, 887; Minnesota Min. & Mfg. Co. v. Technical Tape Corp., 7 Cir., 208 F.2d 159; Youpe v. Moses, 94 U.S.App.D.C. 21, 213 F.2......
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