105 F.2d 935 | 2d Cir. | 1939
The defendant calls our attention to an obvious error in our former opinion, 104 F.2d 652, which we must correct. We based the jurisdiction of the District Court upon § 41(1) (a) and § 41(1) (c) of Title 28, U.S.Code, 28 U.S.C.A. § 41(1) (a, c), disregarding § 632 of Title 12, 12 U.S.C.A. § 632, which gave it jurisdiction regardless of the amount in controversy. Federal Reserve Bank v. Kalin, 4 Cir., 77 F.2d 50. This throws out the reasoning by which we affirmed the judgment; that is, that costs were not involved because no more than nominal damages could be recovered. Nevertheless, we are not called upon to go into any further extended discussion of the merits. We concluded that if between November 24, 1933, and December 28, 1933, the defendant had complied with the plaintiff’s demand and had turned over the bullion, the plaintiff would have been bound at once to hand it back. From this it necessarily follows that the refusal could not be a conversion, for the plaintiff had no right of possession.
Judgment affirmed.