United States ex rel. Lynch v. Fay

Full title: UNITED STATES of America ex rel. William LYNCH, Petitioner-Appellee, v…

Court: United States Court of Appeals, Second Circuit

Date published: Aug 29, 1960

284 F.2d 301 (2d Cir. 1960)

Opinion

No. 347, Docket 26207.

Argued June 13, 1960.

Decided August 29, 1960. Motion to Amend Order Denied December 2, 1960.

Jaffe Wachtell, New York City (David Jaffe, Herbert M. Wachtell, New York City, of counsel), for appellee.

Louis J. Lefkowitz, Atty. Gen., State of N.Y. (Samuel A. Hirshowitz, First Asst. Atty. Gen., George K. Bernstein, William G. Ross, Asst. Attys. Gen., of counsel), for appellants.

Before WATERMAN, MOORE and HAMLIN,^_ Circuit Judges.

_ Of the Ninth Circuit, sitting by designation.

PER CURIAM.

We have been informed that petitioner died on July 30, 1960, after submission of his appeal, but prior to a determination thereof.

The appeal is dismissed as moot.

PER CURIAM.

On Motion to Amend Order

PER CURIAM.

Petition denied.

MOORE, Circuit Judge (dissenting).

I would grant the petition to amend. Although the appeal is moot by reason of William Lynch's death, the proper procedure indicated by the Supreme Court in United States v. Munsingwear, Inc., 1950, 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36, and recently by this court in Bodkin v. United States, 2 Cir., 1959,

266 F.2d 55, 56, in my opinion is to dismiss the appeal, vacate the district court's judgment and remand with directions to dismiss. I would adopt this procedure.