Zamore v. Goldblatt, 153
Decision Date | 05 February 1953 |
Docket Number | No. 153,Docket 22557.,153 |
Parties | ZAMORE et al. v. GOLDBLATT et al. |
Court | U.S. Court of Appeals — Second Circuit |
George J. Rudnick, Brooklyn, N. Y., for appellants.
Max Schwartz, Brooklyn, N. Y., for appellee.
Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.
The first question, although neither party considered it in the briefs, is as to the appealability of the order. City of Morgantown v. Royal Ins. Co., Ltd., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347, is flat against appealability. So appellants' attorney has admitted in his letter to the court submitted after the argument. This letter asks us to treat the appeal as a petition for mandamus. In Magnetic Engineering & Mfg. Co. v. Dings Mgf. Co., 2 Cir., 178 F.2d 866 at page 869, we said: "In this circuit we have twice refused to accept an appeal as a substitute for a petition for mandamus, even when that remedy was applicable; and we shall abide by that ruling."
Appeal dismissed.
My colleagues rest their decision on adherence to the previous decisions in this circuit that papers labelled an "appeal" must never be accepted by us as a petition for mandamus. I feel constrained to follow such recent precedents in this court and therefore to concur. However, I regret this new manifestation of procedural rigidity in appellate practice. As Judge L. Hand said, dissenting from a similar ruling in Abbe v. New York, N. H. & H. R. Co., 2 Cir., 171 F.2d 387, 388, "True, an appeal is not a petition for that writ mandamus, but, since the only difference is one of form, I am not willing to put the appellant out of court for his failure to call his application by its right name." As I said, when dissenting in United States ex rel. Sutton v. Mulcahy, 2 Cir., 169 F.2d 94 at page 102, ...
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