Nichols v. Long Island Lighting Co.

211 F.2d 392, 1954 U.S. App. LEXIS 4630

Opinion

PER CURIAM.

In our prior opinion in this case, 2 Cir., 207 F.2d 931, we affirmed the order of the district court dismissing the action herein. We did so first on the ground that the action was a collateral attack and as such was prohibited by the injunction accompanying the consolidation decree. Moreover, we found that the claims presented were not new but a een passe on e ore or were known at the time of previous attacks on the decree. See, In re Long Island Lighting Co 2 Cir. 197 F.2d 709. Thus the plaintiffs should have been barred from proceeding further on the basis of the allegations presented in the complaint. However, Judge Inch’s order dismissing the action contained the following clause: without prejudice to any further proceedings which the plaintiffs herein may desire to undertake, pursuant to this Court’s reserved jurisdiction in said Civil Action No. 10,413, to vacate or modify the order in the aforesaid action by reason of the aliegations set forth m the complaint here-m.”' In view of our further finding of resjudicata this clause should have been stricken out Accordingly, we modify our former decision by striking out the above clause, and as modified we affirm the order dismissing the action below.

Judgment modified and as modified affirmed; mandate recalled and amended accordingly.