As pointed out in the Cohen case, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, the very purpose of the "final" decision requirement of 28 U.S.C. § 1291 "is to disallow appeal from any decision which is tentative, informal or incomplete." In Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, 2 Cir., 239 F.2d 555, rehearing denied 2 Cir., 241 F.2d 937, certiorari denied 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38, a divided court held that, since an order disqualifying an attorney had elements of collateral finality, there should be no distinction in an order refusing to disqualify. But surely that does not follow, for the finality of the two orders is as dissimilar as their results.

Judge Bryan's opinion denying the motion is reported in 169 F. Supp. 622. In taking its appeal appellant relied upon Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, 2 Cir., 239 F.2d 555, rehearing denied 241 F.2d 937, certiorari denied 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38, as establishing that the order was appealable. Subsequent to taking its appeal the case of Fleischer v. Phillips, 2 Cir., 264 F.2d 515, certiorari denied Fleischer v. Benjamin, 359 U.S. 1002, 79 S.Ct. 1139, was decided by this court.

The appealability of pre-trial orders denying motions to disqualify has had a far more checkered history in other circuits. The Second Circuit, for example, in Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, 2 Cir., 1956, 239 F.2d 555, concluded that both an order denying and an order granting a motion to disqualify are appealable under Cohen. It then reversed itself, at least as to an order denying a disqualification motion, in Fleischer v. Phillips, supra, only to return to Harmar in Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 2 Cir., 1974, in banc, 496 F.2d 800. In part because of the influence of Silver Chrysler, a majority of the circuits came to hold that an order denying a disqualification motion is appealable. See, e. g., Akerley v. Red Barn System, Inc., 3 Cir., 1977, 551 F.2d 539; Aetna Casualty and Surety Company v. United States, 4 Cir., 1978, 570 F.2d 1197; Woods v. Covington County Bank, 5 Cir., 1976, 537 F.2d 804; Melamed v. ITT Continental Banking Co., 6 Cir., 1976, 534 F.2d 82; Fred Weber, Inc. v. Shell Oil, 8 Cir., 1977, 566 F.2d 602; Fullmer v. Harper, 10 Cir., 1975, 517 F.2d 20. See also Schloetter v. Railoc of Indiana, Inc., 7 Cir., 1976, 546 F.2d 706 (order granting motion to dis

The position of this court on this subject has been one of tergiversation. In Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, Inc., 239 F.2d 555 (2d Cir. 1956), reh. den., 241 F.2d 937 (2d Cir. 1977), cert. denied, 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38 (1957) Judge Swan, with the concurrence of Judge Learned Hand (Clark, C. J., dissenting), held that denials of motions to disqualify counsel fall within the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Harmar was implicitly overruled by Fleischer v. Phillips, 264 F.2d 515 (2d Cir. 1959), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959) but was resurrected by our unanimous decision en banc in Silver Chrysler in 1974.

In an opinion by Chief Judge Clark the court in Fleischer distinguished between appeals from orders granting disqualification and those denying disqualification, concluding that, for the sake of judicial economy, immediate appeals would not be allowed in the latter situation. Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, Inc., 239 F.2d 555, 556 (2d Cir. 1956), rehearing denied, 241 F.2d 937 (2d Cir.), cert. denied, 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38 (1957). [T]he finality of the two orders is as dissimilar as their results.

However, we are not here writing on a clean slate. This Circuit in 1956 in Harmar Drive-In Theatre v. Warner Bros. Pictures, 239 F.2d 555 (2d Cir. 1956), squarely faced the appealability question saying: "Before reaching the merits it is necessary to consider whether the order is appealable." There, as here, supplemental briefs addressed to this question had been requested by the court and submitted.

An order such as the one here complained of might be held to fall within that class of orders described in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), as "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated," and thus to be a final order appealable under 28 U.S.C. § 1291. Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, Inc., 239 F.2d 555 (2 Cir. 1956), cert. denied 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38 (1957). See Fleischer v. Phillips, 264 F.2d 515 (2 Cir. 1959), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959).

Marco v. Dulles, 268 F.2d 192 (2d Cir. 1959); Fleischer v. Phillips, 264 F.2d 515 (2d Cir. 1959). But see Harmar Drive-In Theatre, Inc. v. Warmer Bros. Pictures, 239 F.2d 555 (2d Cir. 1956). Quixotic in the sense that for many attorneys it would truly be the impossible dream come true.

all authorities agree that all members of a partnership are barred from participating in a case from which one partner is disqualified. * * * [O]nce a partner is thus vicariously disqualified for a particular case, the subsequent dissolution of the partnership cannot cure his ineligibility to act as counsel in that case. Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures, Inc., 2 Cir. 1955, 224 F.2d 824, 826-827, aff'g S.D.N.Y., 130 F. Supp. 514; accord, Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, Inc., 2 Cir. 1956, 239 F.2d 555, 557; W.E. Bassett Co. v. H.C. Cook Co., D.Conn. 1962, 201 F. Supp. 821, 824, aff'd, 2 Cir., 302 F.2d 268. However, new partners of a vicariously disqualified partner, to whom knowledge has been imputed during a former partnership, are not necessarily disqualified: they need show only that the vicariously disqualified partner's knowledge was imputed, not actual. Laskey Bros. of W. Va. Inc. v. Warner Bros. Pictures, Inc., supra 224 F.2d at 827.

We think not. It is true that the motion made in the trial court requests an order which appears on its face to be in the nature of an injunction, and the order of denial might be considered appealable under 28 U.S.C. § 1292(a). (Cf. Harmar Drive-In Theatre v. Warner Bros. Pictures, 2 Cir., 1956, 239 F.2d 555) The principal relief sought, however, is a ruling that Young is disqualified. In Fleischer v. Phillips, 2 Cir., 1959, 264 F.2d 515, it was held, Judge Moore dissenting, that an order denying a similar motion was not an appealable order.