United States v. Mayfair Meat Packing Corporation

Decision Date11 January 1947
Docket NumberNo. 108,Docket 20379.,108
Citation158 F.2d 685
PartiesUNITED STATES v. MAYFAIR MEAT PACKING CORPORATION et al.
CourtU.S. Court of Appeals — Second Circuit

Jack Kranis, of New York City (Morris Fierson, of New York City, of counsel), for appellants.

John F. X. McGohey, U. S. Atty., of New York City (Bruno Schachner and William M. Regan, Asst. U. S. Attys., both of New York City, of counsel), for appellee.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

An information in nineteen counts was filed against the appellants in the District Court for the Southern District of New York charging violations of the Emergency Price Control Act of 1942, Title 50 App. § 901 et seq., U.S.C.A., and the regulations promulgated thereunder by the Price Administrator and more particularly of violations of Revised Maximum Price Regulation No. 169, as amended, which established maximum wholesale prices for meat. A motion to change the venue having been denied, they pleaded not guilty and moved for a stay and for leave to file a complaint, pursuant to § 204(e) (1) of the above statute, in the Emergency Court of Appeals to test the validity of the above regulation. The motion was denied by a judge assigned temporarily to sit in the Southern District. Thereafter the appellants pleaded guilty to all counts in the information. Following that, they were sentenced by another temporarily assigned judge. They then moved in arrest of judgment. That motion was denied by the first judge and this appeal is from the final judgment.

The decisive issue is whether the denial of the appellants' motion for a stay and for leave to file a complaint in the Emergency Court of Appeals is error. Before we get to that, however, it is necessary to notice an objection to our jurisdiction made by the appellees on the ground that this order is not final. See, United States v. Horns, 3 Cir., 147 F.2d 57.

Section 204(e) (1) of the Act allows a defendant in any criminal proceeding thirty days after arraignment, or within that time as extended by the court for cause, to move for leave to file a complaint in the Emergency Court of Appeals to test the validity of any regulation or order issued under § 2 of any price schedule effective under § 206 of the Act under which he is being prosecuted; and the defendant in either a civil or criminal proceeding, brought pursuant to § 205 of the Act or of § 37 of the Criminal Code, has five days after judgment within which to make the same motion. Because of this section the appellee argues that the motion which was interlocutory when denied did not become appealable as a part of the final judgment when the latter was entered since it could have been renewed within five days after the entry of judgment. It is said that the point is one of substance since, unless the appellee is right, it would be possible for an accused both to appeal after judgment and to move for leave to file a complaint in the Emergency Court of Appeals. We need not now decide whether the judgment in this case became final for purposes of appeal when it was entered or not until five days thereafter when the time expired within which a motion for leave to file a complaint in the Emergency Court of Appeals could have been made. In either event it had become final when this appeal was taken. The denial of the motion for leave was therefore merged in the final judgment and is now reviewable. Dowling Bros. Distilling Co. v. United States, 6 Cir., 153 F.2d 353.

The relief sought and denied could not be obtained as of right. They could of right only file a protest under § 203(a) of the Act before proceedings were commenced against them. When they did act, their former absolute right had been limited by events which made it conditional upon their establishing both that they made their motion for leave to file in good faith and that they had a reasonable and substantial excuse for their failure to test the validity of the regulation previously. Failure to carry this burden in...

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3 cases
  • Udzinski v. Kelly
    • United States
    • U.S. District Court — Eastern District of New York
    • 11 April 1990
    ...v. Kelly, No. 89-2620, 1989 WL 101919 (S.D. N.Y. Aug. 28, 1989) (LEXIS, Genfed library, Dist file); United States v. Mayfair Meat Packing Corp., 158 F.2d 685, 686 (2d Cir.1947). To hold otherwise would allow federal courts to disregard volumes of meritorious state procedural case law, inund......
  • United States v. Cohen, 9267.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 17 September 1947
    ...848, 66 S.Ct. 1120, 90 L.Ed. 1622. We cannot say that the learned judge abused that discretion here. Cf. United States v. Mayfair Meat Packing Corporation, 2 Cir., 1947, 158 F.2d 685. Finally, we find no merit in appellant's point that there existed a material variation between the informat......
  • Beckhardt v. National Power & Light Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 20 November 1947
    ...153 F.2d 353, 356, certiorari denied Gould v. United States, 328 U.S. 848, 66 S.Ct. 1120, 90 L.Ed. 1622; United States v. Mayfair Meat Packing Corporation, 2 Cir., 158 F.2d 685, 686, certiorari denied Mayfair Meat Packing Corporation v. United States, 331 U.S. 805, 67 S.Ct. 1187. Hence we h......

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