284 F.2d 301

UNITED STATES of America ex rel. William LYNCH, Petitioner-Appellee,
v.
Edward M. FAY, Warden, Green Haven Prison, and The People of
the State of New York, Respondents-Appellants.

No. 347, Docket 26207.

United States Court of Appeals Second Circuit.

Argued June 13, 1960.
Decided Aug. 29, 1960, Motion to Amend Order Denied Dec. 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.

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.

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.

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1 Of the Ninth Circuit, sitting by designation.