Opinion · Court of Appeals for the Second Circuit

Kozemchak v. Ukrainian Orthodox Church of America

443 F.2d 401

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1971-06-03
Topic: general

How later courts describe this case

dismissal of complaint with leave to amend not final decision and not appealable

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Cited by: 3 opinions

KOZEMCHAK v. UKRAINIAN ORTHODOX CHURCH OF AM.,443 F.2d 401(2nd Cir. 1971)

Michael KOZEMCHAK, Philip Pronzen, and Archady Lehach, as the Board of

Trustees of St. Andrew's Ukrainian Orthodox Church of Bridgeport,

Connecticut, Plaintiffs-Appellants, v. The UKRAINIAN ORTHODOX CHURCH OF

AMERICA and The Most Reverend Bishop Andrei Kuschak, Ruling Bishop of the

Ukrainian Orthodox Church of America, Defendants-Appellees.

No. 804, Docket 71-1060.

United States Court of Appeals, Second Circuit.

Argued May 12, 1971.

Decided June 3, 1971.

John F. Grimes, Staten Island, N.Y. (Connolly Grimes, Staten Island, N.Y., on the brief), for plaintiffs-appellants.

Lawrence Anderson, New York City, for defendants-appellees.

Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges.

PER CURIAM:

In 1953 the Mission Society of the Diocese of Connecticut conveyed to the defendant Ukrainian Orthodox Church of America certain real property located in Bridgeport, Connecticut. The property was used by the St. Andrew's Parish until 1969 when it was taken in condemnation by the State of Connecticut. An award of $290,000.00 was paid to the defendants. The plaintiffs brought suit alleging that the Parish of St. Andrew's was entitled to the benefit of the condemnation award. The court dismissed the complaint for failure to state a claim on which relief could be granted, but gave leave to the plaintiffs to amend within twenty days "if it is contended that a special, express trust was imposed as part of the original grant or in connection with it."

The order of the district court is not a final judgment and we therefore lack jurisdiction to hear the appeal. "A dismissal of a complaint by the district court with leave to the plaintiff to amend is not a final decision." Atwater v. North American Coal Corp.,111 F.2d 125(2d Cir. 1940); American Broadcasting Co. v. Wahl Co.,121 F.2d 412, 413 (2d Cir. 1941).Page 402

Plaintiffs have expressed concern at what they consider to be an unwarranted limitation on the type of amendment to the complaint which will be allowed by the district court. We dismiss the appeal without prejudice to plaintiffs' filing, within 20 days from the date of this decision, an amended complaint without prior limitation on the manner in which the complaint is to be amended.

Appeal dismissed.