Photometric Products Corp. v. Radtke

Second Circuit

Photometric Products Corp. v. Radtke

157 F.2d 849

Court of Appeals for the Second Circuit·Decided November 4, 1946·No. No. 68, Docket 20333·Published·Cited by 10 cases

Opinion

PER CURIAM.

The defendants Radtke, Warner Brothers Pictures, Inc., and Leonard Day, are charged with conspiring with the Radtke Patents Corp. to deprive the plaintiff of its asserted rights to a patent in a complaint which set forth various grounds for relief. The plaintiff moved to substitute Robert Bruce Day as executor for Leonard Day who died more than two years before the making of the motion which was denied on the ground that under Rule 25(a) (1) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the motion would not lie. The plaintiff has appealed from the order denying its motion for substitution. An appeal will not lie when divers defendants are sued for wrongs jointly committed until the suit is decided against all the defendants. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443; Studer v. Moore, 2 Cir., 153 F.2d 902; Hunteman v. New Orleans Public Service, 5 Cir., 119 F.2d 465; cf. Reeves v. Beardall, 316 U.S. 283, 286, 62 S.Ct. 1085, 86 L.Ed. 1478. The present appeal comes within the purview of these decisions.

Appeal dismissed.

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PER CURIAM.

The defendants Radtke, Warner Brothers Pictures, Inc., and Leonard Day, are charged with conspiring with the Radtke Patents Corp. to deprive the plaintiff of its asserted rights to a patent in a complaint which set forth various grounds for relief. The plaintiff moved to substitute Robert Bruce Day as executor for Leonard Day who died more than two years before the making of the motion which was denied on the ground that under Rule 25(a) (1) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the motion would not lie. The plaintiff has appealed from the order denying its motion for substitution. An appeal will not lie when divers defendants are sued for wrongs jointly committed until the suit is decided against all the defendants. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443; Studer v. Moore, 2 Cir., 153 F.2d 902; Hunteman v. New Orleans Public Service, 5 Cir., 119 F.2d 465; cf. Reeves v. Beardall, 316 U.S. 283, 286, 62 S.Ct. 1085, 86 L.Ed. 1478. The present appeal comes within the purview of these decisions.

Appeal dismissed.

Photometric Products Corp. v. Radtke, 157 F.2d 849 (2d Cir. 1946).

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Opinion

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