*1 just being is no for de just There reason there reason for de- lay entering judgment lay. in inter- on the pleader The on counterclaim. issues 54(b) RULE CERTIFICATE entirely counterclaim are distinct those under to the issues determined involved claims With by summary judgment interplead- policy accident on and sickness insurance indemnity pursuant and the under double er to a Memoran- claims counterclaim latter, policies; Decision filed date and life insurance dum of jury, upon appended, be tried to turn Certificate is whether insured died an accidental death. CERTIFIED, in accordance with Rule entirely counterclaim issues likewise are 54(b), Fed.R.Civ.P.: gov distinct from in those involved (1) That the Court directed the has against ernment’s tax claims Mrs. Kleban entry judgment of final on the in- bankrupt parties oif’s estate. Different counterclaim; terpleader involved in each of the sets three (2) claims; plaintiff That the Court determined neither nor one just delay. is no there reason on the defendants counterclaim is in involved the other two sets claims.
Moreover, appeal by an immediate aggrieved party from sum the Court’s
mary judgment interpleader on the coun justice;
terclaim will
interest of
appeal
way
such
in no
will
interfere
adjudication
claims;
remaining
early
contrary,
appellate
on
deci
INC.,
WMCA,
al.,
R. Peter Straus et
Plaintiffs,
sion on
the counterclaim issues
inwill
prompt
likelihood facilitate
resolution
remaining
claims
a case where
Anthony
Joseph Zaretzki,
J. Travia and
every
jus
consideration
fairness and
Plaintiffs-Intervenors,
prompt
tice calls for a
conclusion
case.
LOMENZO, Secretary of
John P.
State of
York,
J.
the State
Louis
Lefko
CONCLUSIONS
witz, Attorney General
State of
al., Defendants,
(1)
interpleader counterclaim,
et
On the
judgment
summary
is to
en-
adjudging
Flynn
tered
Hughes
John
M.
H.
and Lawrence
bankruptcy
trustee in
Mrs.
Rulison,
Defendants-Intervenors.
Klebanoff
entitled
insur-
States
United
District Court
proceeds.
ance
S. D. New York.
(2)
interpleader counterclaim,
On the
July
Heard
Mutual is entitled to
out
recover
July
Filed
Order
interpleaded
costs,
sum its
reasonable counsel fees and ex-
13,1965.
Judgment Affirmed Dec.
penses
strictly
in-
—limited
See
of Mrs. Klebanoff is to Bankruptcy Court.
(4) interpleader counterclaim, On judgment
final to be directed 54(b), pursuant
entered to Rule
954
Paul, Rifkind, Weiss, & Wharton Gar- City; rison, York H. Rif- City, New Simon Greenfield, kind, Jay York of New counsel, Anthony Travia and for Hon. J. Joseph Hon. Zaretski. Doig, City, Jr., Stephen York New G. York, County, New as
for Rockland amicus curiae. Pearce,
Robinson, Silverman, Aron- City, plain- Sand, for sohn & City, Sand, ; York of tiffs Leonard New counsel. Lefkowitz, Atty. of New
Louis J. Gen. York; York, for the of New Orrin State Counsel; City, Sp. Judd, York G. New Zimmerman, Cohen, Donald Daniel M. Zuckerman, City, George York of New counsel. Smith,
Mackenzie, Lewis, Michell & intervening Hughes, Syracuse, Y.,N. for Hughes John and Lawrence defendants Scolaro, Syracuse, Rulison; Richard S. Y.,N. counsel. of City Larkin, Corp. Leo A. Counsel Elections, York, for New Board of City City of President of Council of New George York; Handel, H. P. Morris Dwight, City, York New of counsel. Judge, WATERMAN, Circuit Before Judges. LEVET, and RYAN and District Mineola, Y., Weinstein, for N. Jack * Judge: WATERMAN, Circuit Executive, Eugene Nickerson, H. Hon. opinions Seymour Ross, County; We have read the recent Mine S. Nassau judges Y., York Court of ola, New N. counsel. great Appeals County Atty., Miller, West- Gordon great respect little We concern. have O’Rourke, County, Francis X. for chester judges for of that court the individual Chairman, Supervisors, West- Board judges, share as individual we Libenson, Dep- Irving County; chester judica- American course with entire County Atty., uty of counsel. great respect ture court Buffalo, Y., Fleming, B. N. Robert court. Glinsky Keenan. Messrs. thought of this We had that the order Goldwater, Feldman, May 24, 1965, Monroe Justin N. and the subse- court quent stay City, order York for Democratic denial of a of this New Court, at last Committee. United States * separate opin porter System, including con- This statement and the the several July 9, judges curring follow 1965 statements ions of transcripts Appeals, of statements made York see Glin verbatim Lomenzo, open appended 261 N.Y.S. the order ski v. N.Y.2d court when im 2d N.E.2d it seemed hereto was read and filed. perative previous opinions S. Dis order of the U. As reapportion- July 13, should also trict Court of appear courts System. litigation Reporter appear Re- West the West objections laid to rest to this July 13,1965 court’s Order Court mandating an election in fall Acting upon application April dated of 1965 of a new State to hold presented Attorney to us year. office for a term of one General the State of New We do note the statement of chief proceedings open after thereon in judge *3 Appeals, of of the Court May 10, 1965, 24, 1965, May on and on however, that, quote, “Despite and I May this Court at the conclusion of the illegalities those of ‘Plan under which A’ hearing open filed in in court held, proposed a 1965 election is to be we presence embody- the of order counsel an obliged would of course ing following the mandates: and follow the Federal courts’ orders for hereby It ordered that: year such an election if this those courts binding “1. An had made election of final and orders there- members Legislature the for.” New York State 2, 1965, shall be held on November We intended order this provided that terms May 24, 1965, exactly to be such an members so or elected on that date order, directing. so We believe the order any special election to fill vacan- expressly judgment, did state such a but cies, expire shall on December any question purpose, remove as to its wording, entering intent we are a fur- containing mandatory ther order in- Though purported “2. stat- junctive provisions. presently ineffective, ute is itself Reapportion- scheme set forth in the RYAN, Judge (concurring): District Compliance Act, Chapter I concur with the statement made now Laws of 1964 [McK.Unconsol. by Judge together Laws, Waterman. seq.], 2361 et § such clerical a.s corrections have been Judge
LEVET, (concurring): District Secretary certified to us pursuant May State concur to our order of with this statement. 10, 1965, proce- in accord with the expressed my opinion heretofore have dures in set forth 403 of said in- § against A the use of Plan as the basis Act, effective shall form the basis November, for the election to be held in for the election members of the 1965, although always approved I have Legislature New York State at the However, majority a 1965 election.* general 2,1965 election on November of this court has directed and has or any primary and for contest to nomi- plan, dered the use of that Plan in Legislature nate candidates year’s election of the members of any special or for election to fill year for the 1966. The prior vacancies to December Supreme United States Court has refused 1966. There is attached hereto and stay such election on such a basis. part copies made a hereof of the Act machinery state, The election of this and the certified clerical corrections. already been indicated here this pro- morning, “3. Jurisdiction implemented of further has been ceedings may be found to be use of Plan A for the A 1965 election. necessary in this Court is retained.” shift at time would create endless confusion. entry Notice of this order was Accordingly, I concur at least attorneys parties mailed to the for all result directed the statement made May 25, 1965, day on and on that we de- hereby Judge Waterman, concur application nied an filed on behalf of day in the order which is this made. plaintiff-intervenors Anthony Travia J. * Judge referring Note: Levet to his dis- position 1965. His sent, expressed open May 10, in court on appendix set forth in an hereto. stay pending Joseph APPENDIX Zaretzki appeal Supreme Court order. judge Although court was the three 1, 1965, on June the United States approving Plan socalled unanimous L.Ed.2d 381 480, 85 S.Ct. U.S. Judge 916, later, F.Supp. after see 238 dissenting, both denied one Justice Levy hearing of the a motion to accelerate appeal comply A Court Plan did not held that stay and a motion to our Constitution, New York State
pending appeal.
Ap-
York Court of
and after the New
foregoing,
Despite
about
on or
Judge Levy’s
peals
opinion,
affirmed
22, 1965,
Frank
June
one
J. Glinski
from effectuat-
Levet dissented
one
F. Keenan filed suit
William
ing
it better to
Plan A. He believed
State of
on
order that at the election
November
among
Albany County, seeking,
assemblymen and
1965 the
state sen-
*4
restraining
things,
other
order
from
dis-
ators be elected
the election
Secretary
from
York
of New
State
tricts of 1964 and that the members
taking any
our
action in obedience to
the
weighted
elected
cast
so
should
May 24, 1965 order.
equal
proportion
to
votes
population
to the total citizen
of the state
July 5,1965,
On
a Justice of that Court
population
re-
granted
1965,
citizen
of their
prayer,
July 9,
and-on
spective districts bears.
Appellate
after
Division of
Su-
preme Court of the State of New
opinion
Levet rendered
7,
July
Department,
Third Judicial
on
hearing May 10,
at the
on
1965 in which
unanimously
lower
1965
reversed the
had
disagreed
designation
he
with
court,
Appeals,
the New
Court
appended; and,
Plan A
follow-
is hereto
281,
27,
16 N.Y.2d
261
209
N.Y.S.2d
ing it,
opinion
on
further
rendered
his
Appellate Divi-
reversed the
N.E.2d 277
sion,
May 24, 1965,
he
in which
continued
655, 261
280
24 A.D.2d
N.Y.S.2d
object
ap-
of Plan
to the use
is also
Supreme
and
Jus-
reinstated the
Court
pended.
injunctive
tice’s
order.
10,
HEARING, MAY
1965.
9,
application
July
then
On
1965
was
requiring
for an
made to this Court
why
I am in
with
accord
JUDGE LEVET:
Glinski and Keenan to show cause
everything except
agree
I do
not
parties
and all
to this action should
designation
interfering
of Plan
enjoined
with the
either
from
version,
or the reformed
carrying
unadulterated
of our
out
execution
why:
briefly
1965,
and I
May 24,
shall state
other
order of
and for
appropriate to
or-
relief
effectuate said
1962,
March,
In
the United
Su-
States
der, and
preme
re-
the basic
on
Court decided
case
apportionment,
Carr,
application,
v.
Baker
369 U.S.
notice of
after
said
186,
hearing
day,
691,
82
L.Ed.2d
7
663.
de-
S.Ct.
this
due
thereon
and
liberation :
January 11, 1962, this
dis-
Court
complaint in
A. v.
hereby
missed the
W.
C.M.
It is
that:
ordered
Simon, D.C.,
F.Supp. 741.
Keenan,
Glinski,
Frank J.
William F.
Supreme
1962,
action,
agents,
June,
va-
In
Court
parties
and
all
this
their
attorneys
servants,
and remanded the
cated that dismissal
and
successors
their
con-
case to the
court
further
persons
hereby
district
and
all other
forever
light
interfering
enjoined
v. Carr.
sideration
Baker
and
restrained
three-judge
carrying
After
remand
out
execution
again
ap-
New York State
held that the
officers
and all
existing
portionment
were
then
laws
election officials and their
successors
Simon,
valid,
D.C., A. v.
persons
M. C.
W.
order of
F.Supp.
368.
1965.
Court
Assembly
Supreme
apportionment
plan.
Court
tentative
On June
Lomenzo,
plan
apportionment
v.
No
reversed
M. C. A.
U.
the Senate
W.
submitted,
1418, 12
was
L.Ed.2d 568 and
no bill
S.
has been
S.Ct.
submit-
again
ted,
passed.
court for
act has
to the district
no
been
remanded
proceedings
further
consistent with the
remaining
The time now
before the
opinion in
Court’s
W. M. C. A.
primary
proce-
elections is such that
Lomenzo, supra,
Reynolds
Sims,
v.
v.
dures for 1965 election must
on
commence
377 U.S.
84 S.Ct.
12 L.Ed.2d
or about June
Determination
district
lines is nec-
essary
permit
Reynolds
In
order to
a basis for des-
Sims
ignating
petitions,
stated,
quote:
revision and
enroll-
books,
and so forth.
This time
provisions
“[S]tate
constitutional
expired.
fixed
this court has
should
deemed
violative
spite
protestations
In
various
only
Federal Constitution
val-
when
parties
concerned,
legally
authorized
idly
rights
asserted
constitutional
plan
apparent
has been enacted and it is
protected
could not otherwise be
that none will
required
be enacted
Clearly,
effectuated.
courts
date.
attempt
to accommodate the relief
papers presented
pro-
In the
ordered
to this court
plaintiffs
appointment
visions of state constitutions
insofar
advocate the
possible.”
Special
(p. 584,
p.
Attorney
as is
84 S.Ct.
Master. The
Gen-
*5
1393.)
tempo-
eral
that
recommends
the court
rarily
provides
utilize Plan
which
Legislature
special
At a
session of the
Assemblymen.
165
December, 1964,
apportion-
held in
four
Now,
passed,
Reynolds
acts were
each
which
view
v.
Sims
provided
my opinion
for more
150
than
members of
that
recourse to
A is
Plan
Assembly.
plans
improper
say
respect
and I
These
were
that
due
denoted
B,
opinions
my
to
as Plans
C and D.
brothers on this
court,
myself
pro-
and I
vote for another
February
1, 1965,
this Court held
weighted
is,
voting.
cedure,
that
D,
that
C
B
Plans
and were each invalid
Weighted voting has been considered
valid,
F.Supp.
and that Plan A was
238
by numerous courts.
I
to
num-
refer
a
916.
you
ber of
I
cases and will
not bore
However,
proceeding
in a
entitled “In
any readings from them.
the Matter
the Petition of Jerome T.
Orans,”
Levy,
Honorable Matthew M.
I refer
to
which
familiar
me
one
is
to
Supreme Court,
Justice of the
Judge
and which is familiar
to
also
County, held that Plan A violated
Waterman,
American
Federation
provisions of the
York
State Consti-
Wittstein,
171,
Musicians v.
379 U.S.
tution with
to
300,
number in the
(1964).
S.Ct.
page 44. There are also other
voting
present
legislative
distribution
which seem
from the
article
tions
same
words,
attempt
power,
in other
that an
stop-gap
approve
a
solution.
this as
remedy
must
made to
now be
the status
easy
an
one.
It
the formula is
Now
by
declared
heretofore
computers.
require any
It can
doesn’t
14th Amend-
in conflict
by
simplest
ment.
form of
done
arithmetical
provided.
remedy
Third,
agree
I
thus dissent to the
I
there should
voting
large.
my
weighted
I
vote for
no
adhere to
election at
legislators
present
elected under the
Fourth,
agree,
present
I
at the
at least
approved
district which have been
hereto-
time,
special
there
be no
fore,
Assembly
both in the
in
and
appointed.
master
Senate.
disagree
However,
respectfully
I
possible
No firm determination is now
temporary remedy proposed by
adjudication
any
order to secure
in
majority of this court.
revision of the
at
districts
a time soon
my
I stated
reasons
enough
procedures
for the election
of a
majority’s
for
dissent from
directive
Voting
1965 election.
for
As-
year
for
use of Plan A for the
semblymen and some 50-odd Senators at
augment
recapitulate
brief,
I
large
confusing
impractical.
is
Re-
briefly:
voting
present
power
tention
would
First, Plan A has of course been declar
illegal.
be unwarranted and
ed unconstitutional
as to
number
weighted voting
use
as I de-
legislative membership.
the Orans
See
it,
apparently
general,
scribed
case,
Desmond,
by
decision
Chief
approving
without
exact
details
15 N.Y.2d
N.Y.
N.E.2d
—my statements are somewhat academic
(1965).
S.2d
along
this line
now—has some disad-
Second, Judge
Levy
Matthew
indicat-
vantages,
but
the lesser of the evils.
opinion
ed in his
clear
there was
Weighted voting by committee mem-
gerrymandering
plan.
evidence of
in that
unnecessary,
bers
since
real
test
Petition,
In
See
Re Orans’
45 Misc.2d
enacting
is the final
vote.
(1965).
improperly unwise, membership based universities, political from the one adoption since will future create difficul- University science teacher from the expansion ties of and contraction and member, Rochester other a might .leave void the 1965 election. believe, editor of the Columbia Law my opinion It is that the 14th Amend- Review, whose material we have received gives possible power, no basis here. suspend provi- this court to the valid article, The first sions of the State Constitution unless Rutgers Review, Law was written directly necessary to obtain the results John III F. Banzhaf and was submitted governing demanded decision *7 here to us. affecting legislative arguments Now, principal of this apportionment in this state. One, are it is twofold. said that dis- Whether the Federal Courts should voting power tricts with small cannot equity mould their decrees in so large supported defeat with bills those provisions constitutional of the State of voting power. I assume that that was respect composition, New York with to purposes one of the decision in districts, not the shall Washington, W. M. A. v. Lomenzo. C. presented be observed is the issue this to Secondly, rep- that one asserted temporary adoption court. Even the with, say, 2.9, votes or resentative three Plan A this court violates is, split whatever it will not his vote. gov- principal what I to believe be basic erning Now, relationship to of states and na- with due the academic world, tion under our I Federal wonder have ever Constitution. whether of caucus heard votes. Moreover, equitable remedies limit- required article, Now, ed the relief other to and should be written Pro- necessity University tailored to rather than con- fessor Riker of Roches- to ter, venience. a technical discussion contains possible to can of formulae this condition which faces this state sorts illustrate likely only cooperative probable of this but not defects remedied with statesmanship made that one method. The statement is the leaders the State Legislature Legislature. plans submitted weighted voting or vot- carried fractional remedy. I dissent as therefore used, ing, and to term was whichever adoption oppose, to I vote plan compare proposed that with the assert, there is Plan since plan, I recall the not sound. That as remedy present proposed, to other no adopt legislative enactments, provided for one- suggested. I the method have populated least dis- sixth vote County. tricts, Schuyler Obvi- such county ously, a certain if there is a county population with a and another
population that, of 21 times there is populous why
basic reason county the more not have the more effective
vote. purpos- again, say,
That is one decision of the Court.
es al., STATE OF WASHINGTON et all, then, All I do believe that Plaintiffs, invalidity possible constitutional important. I think that this method is COMPANY, Allis- ELECTRIC GENERAL reject adopt this to Plan A and Manufacturing Company and Chalmers gnat swallow a camel. strain at a Westinghouse Corporation, De- Electric Plan collision involved between fendants. of the state A and Constitution the. A. Civ. No. determining the clearcut. It is in effect United States District Court legislators state. number Washington, N. W. D. D. hand, the collision between March system weighted Con- the State accepted obviously if must be stitution it, does it
there is a direction because
not, Fed- result in the unlike Plan dictating term of a eral Government organiza-
temporary state constitutional
tion. intending say this without intending cynical to be without degree of, shall with some critical and knowledge politics. say, about distant might people some here what
We have call- Frankfurter have called what political thicket.
ed a *8 politics. wrong nothing
There is wishes a means Politics is unit people of a state any in-
validly without effectuated present situation of what the dication standpoint, I note the means from may though attempts, even this, something belated, about to do emergence that the believe