*1 79 rehearing 916, instead, denied, country. language, refers 73 S.Ct. 344 U.S. This foreign 332, Nevertheless, con 97 we conviction L.Ed. 706. to the rule that a disquiet preclude federal this result. We fess some at absentia does not imagine relator, considering can sufficient situations where the court from whether criminality upon subject extradition, would be evidence of relator’s procedures pro punishment antipathetic presented so in the extradition decency ceeding to a sense of Com federal court’s before the States United require principle rel. ex reexamination of missioner. See United States 1959, Argento set out a case. Jacobs, above. This is such not D.C.N.D.Ohio v. authority There absentia. F.Supp. were two convictions in 176 877. The was, represent clearly proposi apparently, In one points relator does exist ed counsel. In the other relator was which tion that the conditions under foreign along alleged fugitive tried with his associates to a is to be surrendered solely by present country who were the court and before are to be determined non-judicial who were also the Govern convicted. We affirm branches of Judge right determination extra Smith that of international ment. treaty, solely conditions under to be dition which relator is the creature Italy 1933, Laubenheimer, surrendered in the 290 U.S. must remain Factor v. Department. 276, 287, 191, hands of the 315. State 54 S.Ct. 78 L.Ed. treaty Hence, pro so the extradition Finally, we wish to commend the con-
vides, surrender United States ap- scientious and able manner in which fugitive prosecuted which acts pointed counsel for relator has fulfilled States, are not crimes within the United his duties. Laubenheimer, supra, Factor v. 290 U.S. Affirmed. regard page 300, at 54 S.Ct. 191. We significant procedures demanding country will occur sub
sequent to extradition were listed as
a matter of a federal court’s considera Ruiz, 1896, tion in Ornelas 161 U.S. v. 502, 787; 508, 689, 16 40 L.Ed. S.Ct. regard significant equally
and we it as refusing Secretary that, enjoin LIND, Appellant, Dan turning of Defense over an Ameri v. prosecution Japanese can soldier SCHENLEY INDUSTRIES INC. charges having courts committed No. 12880. Japanese soil, Supreme crimes on Appeals gave States Court United pro Court no consideration to the Third Circuit. prevail Japa that would cedures courts, Girard, 1957, 6, Wilson v. Argued nese 354 Oct. 1959. 1409, 524, 77 1 S.Ct. L.Ed.2d 1544. U.S. 8, Reargued March 1960. field of note interstate We 6, Decided appear power it would extradition fugi impose conditions under which a solely to be surrendered lies
tive is asylum of the Governor of the hands Kentucky Dennison, 1860, v. 24 state: 66, 717; Tay 66, 65 U.S. L.Ed.
How. 366, Taintor, 16 Wall. 83 U.S. v.
lor 287; Creecy, L.Ed. Marbles v. 63, 69-70, U.S. S.Ct. Sweeney Woodall, 1952, L.Ed. 73 S.Ct. L.Ed. U.S. *3 salary Lind would be. embarked
his new duties with Kaufman and was in
“rais
formed October
some
through
es” had come
Lind
and that
get
“boss”,
should
official
word
Subsequently,
Kaufman.
received
a communication,
dated
signed by
informing
Kaufman,
Lind that
he would assume
title
“District
Manager”. The letter
went
to state:
*4
“I
you
wish to inform
of the fact that
Newark,
J.,
Kramer,
for
N.
Bernard
you
responsibility
as
have
much
as a
appellant.
Manager
you
State
and that
con
should
yourself
Jersey City,
sider
Milton, Jr.,
J.N.
to be of
John
the same status.”
City, The
McNulty Augelli, Jersey
letter
(Milton,
&
concluded with the statement:
plan
“An
Seasonwein,
J.,
being
J.
incentive
B.
John
N. Milton
worked out
you
so
Hanlon, Jr.,
City,
only
will
responsible
York
on
not
New
for
your
brief),
increased
appellee.
district,
sales
but
will
way.”
substantially
benefit
monetary
in a
BIGGS,
Judge, and
Chief
Before
managers
The other two district
McLaughlin,
ka-
Goodrich,
under Kaufman received similar memo
LODNER, STALEY,
HASTIE
randa. Lind assumed his duties as dis
Judges.
FORMAN, Circuit
manager
trict
sales
metropolitan
New
During
York.
following
the weeks
Lind’s new appointment,
inquired
Lind
Judge.
BIGGS, Chief
frequently
Kaufman
what his remu
Lind,
diversity
case.
is a
This
neration would be under the incentive
Tilford
Park &
plaintiff-appellant, sued
plan referred to
the letter of
defendant-appellee,
Corp.,1the
Distiller’s
1951, and was informed that details were
due
compensation
asserts is
that he
being
July 1951,
worked out.
In
Kauf
by
expressed
by
a contract
virtue
him
man informed Lind that he was to re
by
supplemented
memorandum
a written
gross
ceive
on
commission
1%
sales
out hereinafter.
as set
oral conversations
of the men under him. This was an oral
expenses he
certain
also sued for
Lind
completely
communication and was
cor
Jersey
moving from New
when
incurred
by
roborated
Kennan,
Mrs.
Kaufman’s
position New
his
New York when
secretary,
present.
former
who was
On
Manager
Til-
Jersey
Park
&
State
subsequent occasions Lind was assured
January 31, 1957.
on
terminated
ford
by
get
Kaufman that
money.
he would
including
evidence,
testi
Lind’s own
Lind
by
was also informed
Herrfeldt
taking
mony,
favora
inferences most
the autumn
get
of 1952 that he would
following.
Lind,
Lind
shows
ble to
1%
commission on the sales
men
years by
employed for some
Early
negoti
under him.
Lind
July 1950,
was
Lind
& Tilford.
Park
Brown,
president
ated with
then
of Park
by Herrfeldt,
Park & Til-
then
informed
Tilford, for
&
the sale of Park & Til-
general
vice-president and
sales-
ford’s
manager,
Jersey
ford’s New
House,
Wholesale
appointed
as
he would be
agreed
apply
money
Brown
owed
Kaufman,
&
Park
Tilford’s
sistant
to Lind
reason of
commission
sales-manager
metropolitan
1%
New
goodwill
against the value of the
Kauf
Herrfeldt
Lind
see
told
York.
proposed
House. The
sale of
and Wholesale
ascertain what his
duties
to man
ley assuming
Corp.
all of Park & Tilford’s ob
was
& Tilford Distiller’s
1. Park
Schenley
ligations.
Industries,
Schenley
Inc.,
merged
substituted in
was
into
corporation,
order
this action
the com
March
before
Delaware
Wortendyke.
Judge
action,
with Schen
of this
mencement
Park
de
not
& Tilford
for but was
Jersey
House was
moved
Wholesale
the New
nied a
all
directed verdict at the close of
consummated.
the evidence under Rule
Fed.R.Civ.
records
produce various
Notice
Proc.,
However,
28 U.S.C.
the court be
Park
employment
served
was
Lind’s
50(b)
low invoked Rule
and submitted
dealing
Lind’s
slip
with
Tilford
one
&
but
jury subject
the case to the
to a later
appointment as district
legal questions
determination
rais
produced
presumed
have been
byed
Park & Tilford’s motion to dismiss.
conflicting as to
evidence was
lost. The
requested
The court then
compen-
“incentive
character
following
questions:
answer the
five
“1.
connection
sation” to be offered
plaintiff
Did
percent
Kaufman offer
one
manager.
a district
services
gross
sales effected
the salesmen
designated
incentive
Herrfeldt
plaintiff?”
under
“2.
If the answer to
percentage
plan
awith
“added incentive
question yes,
plaintiff
when was
arrangement”.
characterized
Kaufman
commence such
If
commissions?” “3.
plan
contests”.
as “bonuses and
question
yes,
answer to
1 is
when
Secretary,
Weiner,
said
TiKord’s
Park &
arrangement
was the commission
ter
*5
plan.”
“pension
was a
that the incentive
minate?”
“4. Did defendant
the
cause
pen-
testified, however, that the
Kaufman
plaintiff to believe that Kaufman had
nothing
plan
to do with the
sion
authority to
plaintiff
make the offer to
he referred to.
bonus incentive
question
referred
in
1?” “5. Was
plaintiff
justified
presuming
Lind com
The record also shows
authority
Kaufman had the
to malee the
employment
Park &
menced
offer?”
1941,
1942 to 1950
that from
Tilford
basis, that
he worked
a commission
on
provided by
The
jury
answers
the
August 31, 1950,
an assist
became
amounted to a determination
Kauf-
manager
York
ant sales
metropolitan
for the New
man did offer Lind a
commission on
1%
week,
area
at
$125
gross
the
sales
him;
men under
1,
was raised to
a week on October
$150
agreement
that the
April 19,
commenced
1950, plus
After
certain allowances.
1951;
agreement
terminated
manager
Lind became district
February 15, 1952, the date of Lind’s
19, 1951, he continued
to receive
Jersey;
transfer
to New
that Park &
salary
same
a week but this was
$150
Tilford did cause Lind to believe that
January
increased to
1952. On
$175
authority
Kaufman had
offer him the
February 1, 1952, Lind was transferred
percent commission;
one
and that Lind
Jersey
York
New
to New
become
Tilford’,s
assuming
justified
was
that Kaufman
state
of Park &
busi
authority
Jersey.
to make
had the
the offer. In
ness in New
He retained that
addition,
jury
January 31, 1957,
Lind
as
position
awarded
$353
when he
until
moving expenses in-
York.
reimbursement for
back New
transferred
was
days
party,
provides
50(b)
10
after the
has
within
follows: “When-
Rule
2.
may
judgment
discharged,
move for
for
directed verdict made
a motion
ever
accordance with
motion for a di-
denied
all
evidence is
the close
at
granted,
any
A motion for a new trial
verdict.
reason
not
rected
for
or
may
joined
motion,
with this
or a
be
new
to have submitted the
deemed
court
may
prayed
subject
for in the alterna-
a later de-
trial
to the
action
questions
legal
was returned the
tive.
may
If a verdict
raised
termination of
judgment
may
days
allow the
to stand or
motion.
after
Within
reopen
judgment
reception
verdict,
party
order
either
of a
who
may
and
entry
judgment
trial or direct the
for a directed verdict
moved
requested
any judg-
verdict had been di-
have the verdict and
as if
move
If no
was
rected.
verdict
returned the
set aside
entered thereon
ment
judgment
entry
judgment
direct
in accordance
entered
have
verdict;
requested verdict had been
directed
if the
di-
motion for a
with his
may order a new trial.”
rected
returned such
a verdict was not
apply
Jersey
his must
New
doctrines of
the termination
him at
curred
position
Manager.
law,
Jersey
conflicts of
Klaxon Co. v. Stentor
State
as New
Mfg. Co., 1941,
487,
Elec.
313 U.S.
give
a dollar award
The
did
1477,
S.Ct.
85 L.Ed.
the substantive
owing
deemed
but the
commission
agency applicable
law of
contracts
in accordance
court “molded” the verdict
here will be that of New York. James
findings
judgment
jury’s
with the
Chausovsky, 1948,137
H. Rhodes & Co.v.
was rendered in favor of
623; Polyekronos
N.J.L.
60 A.2d
v.
Schenley
$36,953.10plus interest for
Polyckronos,
265, 8
17 N.J.Mise.
mov-
commission and
$353.00
A.2d 265.
ing expenses. However,
judgment
was
the court’s decision
nullified
principle
The
R. Co.
Erie
enter
under
a verdict for
defendant
Tompkins
does not determine the di
(b)
Schenley’s
Rule 50
in accordance with
vision of functions between court and
court,
first
motion.
under Rule
jury.
also
solely by
This is controlled
Fed
granted
50(b),
a new
the event
Metropolitan
eral law. Ettelson v.
Life
judgment
in favor of
defend-
Co.,
Cir.,
Ins.
137 F.2d
certiorari
subsequently
ant was
reversed. See D.C.
denied
320 U.S.
64 S.Ct.
N.J.1958,
F.Supp.
L.Ed.
Diederich v. American News
Co., Cir., 1942,
88
ing
knowledge
personal
by
lack
to consider
It is convenient
point
relating
maker,
evidentiary
entrant
or
issue
be shown
affect
summary
weight,
its
(3)
which
liquor
but such
first. A tabulated
circumstances shall
admissibility”.
not affect its
purported
the sales of
to indicate
These rec
ords,
then,
during
properly
years 1950
were
admitted into
made
evidence
compiled
personnel
su
and a
Lind’s
new trial
under
could
granted
ground.
pervision
over
this
into evidence
was admitted
grounds of
objections on
the defense’s
remaining
The
basis
order
irrelevancy.
these
on the basis of
It was
ing
is
a new trial
that the verdict was
able to establish
records that Lind was
weight of
the evidence.
It
commissions
of the
exact amount
frequently
is
that a motion for
stated
a
below,
alleged were due him. The court
ground ordinarily
trial on
is
however,
ruling upon the defendant’s
in
nonreviewable because within the discre
declared
motion
a new trial
Montgomery
tion
the trial
court.
admitting
erred
documents
Duncan, 1940,
Ward & Co. v.
311 U.S.
reg
they
made in the
because
were not
147;
61 S.Ct.
85 L.Ed.
be ad
ular
so as to
course of business
Zegan
Co., Cir., 1959,
v. Central R.
It is
under 28 U.S.C. 1732.6
missible
interesting
§
F.2d
Menneti v. Evans Construc
the defense never
to note that
Co., Cir., 1958,
tion
89 duty to is it that there been then approval a case stamp on place its and result, aside; not.”7 may set the verdict injustice otherwise that feels when definitely contrary, logical rec- Quite it is and the are Professor views Moore’s ognized decisions numerous persuasive in deci and some buttressed exception the Bag is an authority. of discretion abuse sional Werthan See refusing a granting or the Corp. Agnew, Cir., rule that F.2d 6 202 v. assignable error.” as damages). is not (question new trial In the rule appellate must still Delaware, vein, Thus an & W. same L. Schirra new upon propriety for a of an order D.C.M.D.Pa.1952, F.Supp. Co., the R. 812, grounds though trial, for rever- the even “there an evi holds if is exceedingly But narrow. before dentiary verdict, are jury’s sal the basis for the made, any re- the can be jury rational decision what is free to or disbelieve discard viewing know what standards court must con facts are with its ever inconsistent judge apply when trial the is bound elusion, the and it immaterial is trial, ruling upon a a might motion for new contrary inference draw a necessarily vary These accord- standards more or feel that another conclusion is grounds urged ing support to the Hendricks, D.C. reasonable.” Pelham v. is, however, the new little goes trial. There M.D.Pa.1955, F.Supp. 774, .authority ruling be further, what standards are to and “The that: evidence applied ruling reasonably new a motion for there inferences deducible grounds light most must be in the verdict is from viewed trial on against prevailing party, and weight to the favorable be- of the evidence jury fol Court must yond assure simple trial maxim that lowed the instructions.” Court’s judge has wide discretion. The few n available conflicting. Co., authorities are Ins. Mut. Life v. Pacific Miller D.C.W.D.Mich.1954, Professor F.R.D. Moore concludes that while Fay Scott, & D.C. judge Co.v. Cooler responsibility the trial American has a F.Supp. D.Me.1937, and Uni equal the result at least to that Land, D.C. Acres v. 13.40 ted States jury he should not set the verdict aside go F.Supp. 535, N.D.Cal.1944, 56 weight contrary to the evidence restricting the discretion farther n andorder simply trial new because he hold 3"udge authorities f°r these ^he ’*:rda* would have come to a different conclusion jury's nat be were the trier of the facts. Pro- verdict maJ sf °rdered aslde fessor Moore states this connection: ne^. ^ ., contrary n eren(cid:127) .. is . the verdict because credibility [S]mce of witnesses is first The the evidence. onderanco of peculiarly jury for the it is an invasion gecond hold three cascs cited of ^ ^ grant province of the s a new trial <imugt g0 manifestIy be verdict ^ merely sharply because the evidence was palpably the evidence exercising m judge, conflict. trial ag compej conclusion that t0 judicial discretion, mature should view right justice”, contrary to verdict setting the overall opinion cited that a third states And trial; consider the character evi- unless, “The ordered complexity simplicity and the dence according whole, after evidence legal principles which was highest probative force to it the apply facts, bound to to the and abstain lawfully entitled, insufficient to it is interfering Judge with the verdict unless support verdict.” Yankwich quite it is clear that the has reached view of his own similar restricted took seriously ordering judge’s a duty result. new trial erroneous because discretion weight essentially contrary to see that is no there the verdict miscarriage justice. Lyophile-Cryochem If convinced the evidence. Ed., p.
7. Practice, Federal 2d Moore’s *11 Corp. Laboratories, Inc., In instance D.C. covered the first evidence. v. Cutter given recog jury fails N.D.Cal.1948, F.Supp. 903, is which it the itself may properly perform confid functions trial nized that for a new the a motion granted judge ed to In instances is law. the latter be satisfied the trial something against prepon of the occurred in course that the the the may have trial which or derance he took the resulted of the but evidence receiving distorted, position jury judge resulted in incorrect, a should not the the trial incomplete judgment the view of or an substitute his on the facts operative facts, ele jury except that of cir some undesirable the or extreme proceed- ment obtruded itself into the cumstances. whereby the a condition in^s authority sup creating^ But is also some there (cid:127),us^ a was rendered porting ,verc^c^ discretion an almost unlimited gílfng difficult impossible. in or In the latter denying granting judge trial or deliv~ the trial court stances> W’ suPra> Murphy a motion new trial. for a jury ered possibly from erroneous Court v. United States District v®rdlct from over circumstances arisin^ California, South Northern District of Iury whlch the control. Under Division, Cir., 1944, F.2d ern usurpation conditions there no is upheld Appeals Court of prime cour^ function granting Judge of a trial Good new Jury as the trier of the facts and the man in United Acres of States 13.40 Jadge necessarily trial must be allowed Land, supra. appellate court found granting refusing Wlde discretion in or judge’s trial discretion such mat a new tria ‘ Judge ters was wider did than Goodman appellate himself. The tribunal said that Bu* no or granting “The [17]. a new trial is discre wh(f; unde^able element occurred P™ous tionary subject with the court no into lr“troduced the trial and the trial except fixed rule a consideration of what grants Judge nonetheless a new trial just”. exception But the it stated is ground agamst that the verdict was potent self a Grayson one. The case of weight the judge the trial evidence’ Deal, D.C.N.D.Ala.1949, v. 431, F.Supp. negating jury has, s verdict proposition stands to some extent at substituted least’ consider the evidence as a credibility facts of the and the indent weigh it, whole and and if it considers jury, af witnesses for jury was mistaken or that its íhe denigration Snch an action effects a wrong, although verdict was supported sys^em (cid:127),ury and t° the extent that by evidence, a grant new trial should be granted judge new trials are takes ed. over, usurp, prime if he does not have stated What we demonstrates jury function as the trier opinion there is no consensus duty facts. then It becomes the to the exact standards to be used appellate tribunal to exercise a closer de granting trial court new trial scrutiny supervision 0f gree than employed by criteria to be js granted case where new trial is charged appellate tribunal with review perni because some undesirable or judge’s ing the trial decision in re trial, obtruding influence cious into the equally spect are indefinite. New trials scrutiny required Such a close in order granted (1) because verdict is protect litigants’ right weight may trial, of the evidence distinguished sharply (2) long ordered for other trials reasons: for ex Where a and corn ample, improperly subject admitted, evidence with matter plicated and deals by counsel, prejudicial ordinary knowledge lying statements an im within the charge newly jurors proper dis a verdict should be scrutinized *12 This has never before reversed is judge than closely by more the trial granting judge a new an order a trial of litigation necessary deals the where all of trial of his conclusion because on simple, the material which familiar is jury reached the evidence that the ordinary relating commercial evidence unjust least, I nor result. At neither subject matter example practices. of An any my colleagues precedent can find case layman be a would unfamiliar ato Rather, in our court for such action. requiring upon nature jury pass recognized we have function organic alleged newly of an discovered action, question broadly discretionary, “re- is infringement compound in an quir[ing] judge trial evaluate ed., Patents, Deller’s See Walker on significant deciding evidence, all subject example prime Section A judgment exercise his own best wheth- lying comprehen matter well within disregarded jury er the has so the clear jurors presented cir sion is weight credible evidence at cumstances bar. injustice.” necessary prevent trial Zegan See v. Central R. Co. of New Jer- subject liti The matter of the sey, Cir., 1959, 266 F.2d 104. The gation easily simple and com before us is opinions of other courts cited the ma- intelligent prehended by any layman, jority recognize only that discretion jury’s The main function was to deter breadth, emphasize but also its extreme veracity i. e. mine of the witnesses: testimony what If conception should be believed. This traditional of the role testimony judge Lind’s nan, Mrs. Ken provided and that of of the trial the one secretary, important Kaufman’s power was deemed limitation on the credible, presented convincing, jury in unimpeachable to make an deci overwhelming deed an facts, case. mustWe con- sion on the even where the evidence conflicting. elude judge may did believe this testi The not sub mony and that the court below substi stitute the verdict he would have ren judgment tuted its actually for that of dered on the evidence for that thereby legal on jury. this issue and abused rendered its But he avoid professionally discretion. what in his trained and experienced judgment unjust is an ver by vacating causing judgment diet it and the mat of the court below will again by ter jury, to be tried second reversed and the case will be remanded Thus, the essential institution with the direction to the court below to respected expedient trial is and an middle judgment reinstate the verdict and in fa- ground is maintained between the ab vor of Lind. any jury’s sence of control over a verdict conflicting evidence, hand, one an(f judicial usurpation of fact find- HASTIE, Judge, Circuit with whom function, on the other. inS Judge, joins (dis- KALODNER, Circuit senting). only scheme Under this function , , reviewing court, t once the trial i-i M of _ has ordered T , , , agree granting judg- , . . I order . _ , , , trial, , „ . a new to see wheth- .. « notwithstanding defendant ment haye bagig rga_ any can ^ er ^ plaintiff, must be the verdict xor the gQn tr¡al judge,g conclusion as to However, majority I think the aside. set wejght injus- of the evidence and the ^he they mistake when a serious take make majority the verdict. The tice of challenge do not extraordinary step additional of re- view, though they do not versing explicitly alternative order what their state ing understand- granting our role is. judge, a new trial because weight present sharp considered record discloses a testimony Kaufman, whether evidence. conflict *13 metropolitan manager, ever sales NATIONAL LABORRELATIONS promised plaintiff, his subordinate dis- BOARD,Petitioner, manager, trict all commission on 1% gross agents working sales of under plaintiff. TRUCKING,INC., C. MALONE There remarkable are several Respondent. aspects alleged promise of this reasonably No. 5586. could have trial influenced the judge on this decisive issue. This com- Appeals Court of United States mission quad- would have than more First Circuit. rupled plaintiff’s salary per week, of $150 April 26 1960 making higher him paid much than superior, Kaufman, any immediate or company other executive, except pres- ident. No other super- sales or visor any received such commission at all. Moreover, alleged promise after the made, month after elapsed month payment with no of the commission 1% or any indication of step to fulfill such obligation. plaintiff Yet himself ad- mits that he made no formal demand inquiry large obligation about the years, several nothing and said even in- formally anyone about it many months save passing an occasional inquiry
verbal said to have been ad-
dressed to Kaufman. The trial court
may have reasoned that the amount said promised have been abnormally was so large plaintiff’s concern non- about
payment unnaturally so small to make promise incredible that the ever was addition, In
made. very vagueness alleged promise
of the and the absence „ ,. ,. ., » , have . any mention of time m it incredulity
increased the judge
who heard the evidence. circumstances it such was neither
arbitrary nor an abuse of discretion for trial, grant judge to
the trial a new in the same
Whether circumstances some judge any member
other have let
court would the verdict stand point.
is beside the . . . majority judge think tlm trial
usurped jury. function I think impinging upon who are
it is we judge and discretion the trial
function regrettable way serious, that is
in a precedent in
without this court.