Opinion
Henry Schnoedewind individually and as a member, director and trustee for German-American Vocational League, Inc., and others, brought an action against Tom C. Clark, Attorney General, as successor to the Alien Property Custodian, and defendant moved to dismiss the action on ground that it had abated. The District Court, Conger, J., held that the motion was required to be granted under circumstances.
Motion granted.
George C. Dix, New York City, for plaintiffs.
Irving H. Saypol, U.S. Atty. for Southern District of New York, New York City, and Harold I. Baynton, Asst. Atty. Gen., Director, Office of Alien Property, James D. Hill, and Westley W. Silvian, all of Washington, D. C., for defendant.
CONGER, Judge.
Motion by the defendant to dismiss this action on the ground that it has abated for the reason that the defendant Tom C. Clark, Attorney General of the United States as successor to the Alien Property Custodian, resigned from office on August 24, 1949, and on the same day was succeeded in office by J. Howard McGrath; that plaintiffs have not substituted the said J. Howard McGrath as defendant herein in the place and stead of defendant Tom C. Clark within six months after the said McGrath took office, as required by Rule 25(d), Federal Rules of Civil Procedure, 28 U.S.C.A.
On August 24, 1949 Tom C. Clark resigned as Attorney General of the United States and was succeeded in office on the same date by J. Howard McGrath. No motion was ever made to substitute Mr. McGrath for Mr. Clark and the six months' period within which substitution could have been made expired on February 24, 1950. Since Rule 25(d) of the Federal Rules of Civil Procedure has not been complied with this motion must be granted. Buck v. Snyder, 85 U.S.App. D.C. 428, 179 F.2d 466; Bowles v. Wilke, 7 Cir., 175 F.2d 35; Bowles v. Ohlhausen, D.C., 71 F.Supp. 199; Becker Steel Co. of America v. Hicks, 2 Cir., 66 F.2d 497; Kuttroff v. Sutherland, 2 Cir., 66 F.2d 500.