Opinion · Court of Appeals for the Second Circuit

Alleghany Corporation v. Allan P. Kirby, Charles T. Ireland, Jr., and Fred M. Kirby, Randolph Phillips

Alleghany Corp. v. Allan P. Kirby, Charles T. Ir., Jr., & Fred M. Kirby, Randolph Phillips, 340 F.2d 311 (2d Cir. 1965)

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1965-01-12
Topic: general

How later courts describe this case

where jurisdiction was raised in and decided by the state courts, “and no attempt to secure review by the Supreme Court of the United States was made,” the federal court will not exercise jurisdiction over the later-filed suit

Citator

UpLaw has not yet analyzed Alleghany Corporation v. Allan P. Kirby, Charles T. Ireland, Jr., and Fred M. Kirby, Randolph Phillips. The absence of a flag is not a finding that it is good law.

Authority status: pending
Cited by: 11 opinions

ALLEGHANY CORPORATION v. KIRBY,340 F.2d 311(2nd Cir. 1965)

ALLEGHANY CORPORATION, Plaintiff-Appellant, v. Allan P. KIRBY, Charles T.

Ireland, Jr., and Fred M. Kirby, Defendants-Appellees, Randolph Phillips,

Defendant.

No. 154, Docket 28397.

United States Court of Appeals, Second Circuit.

Submitted November 9, 1964.

Decided January 12, 1965.

Page 312

Townley, Updike, Carter Rodgers, New York City (Stuart N. Updike, J. Howard Carter, Lee W. Meyer, Ronald S. Daniels, Richard J. Barnes, Peter G. Kelly, New York City, of counsel), for plaintiff-appellant.

Donovan, Leisure, Newton Irvine, New York City (Granville Whittlesey, Jr., James V. Hayes, Robert M. Loeffler, Walter L. Stratton, John J. McCann, Ben Vinar, New York City, of counsel), for defendants-appellees.

Before WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, MARSHALL and ANDERSON, Circuit Judges.

PER CURIAM.

Subsequent to the filing of the three opinions in this case on May 19, 1964, reported at333 F.2d 327, plaintiff-appellant petitioned for a rehearing by the full court. This petition was granted on July 22, 1964, Chief Judge Lumbard disqualifying himself and not participating. Later, the court having ordered that the rehearing be without oral argument, briefs were submitted by the parties, the last and final brief in rebuttal having been filed on November 9, 1964.

Upon consideration of the petition and subsequently filed memoranda, the court is evenly divided as to proper disposition of the case, for Judges Moore, Kaufman, Marshall and Anderson would affirm the decision below, reported at218 F. Supp. 164(S.D.N.Y. 1963, Dawson, J.) and Judges Waterman, Friendly, Smith and Hays would reverse that judgment and would remand the case to the district court for further hearing there.¹

Accordingly, the judgment below is affirmed.Page 313

In its reply brief on rehearingin bancappellant points out for the first time that since the claim in the state court suit relating to the exchange of stock was grounded in part on an allegedly false and misleading proxy statement, see § 14(a) of the Securities Exchange Act of 1934,15 U.S.C. § 78n(a) and SEC Rule X-14A-9, federal jurisdiction existed, see J.I. Case Co. v. Borak,377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), and argues that § 27 of the 1934 Act,15 U.S.C. § 78aa, made such jurisdiction exclusive and rendered the state judgment void. We find it unnecessary to rule on the argument. For, apart from any other factors, the issue of jurisdiction was raised in and decided by the New York courts, Zenn v. Anzalone,1 A.D.2d 662, 146 N.Y.S.2d 286 (1955), motions for reargument and for leave to appeal to the Court of Appeals denied,1 A.D.2d 773, 149 N.Y.S.2d 213 (1956); and no attempt to secure review by the Supreme Court of the United States was made. See Treinies v. Sunshine Mining Co.,308 U.S. 66, 78, 60 S.Ct. 44, 84 L. Ed. 85 (1939). On this the court is unanimous. ↩