Nichols et al. v. Long Island Lighting Co. et al, 211 F.2d 392 (2d Cir. 1954)

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US Court of Appeals for the Second Circuit - 211 F.2d 392 (2d Cir. 1954) Motion Submitted February 1, 1954
Decided March 22, 1954

Harold G. Aron, New York City, for plaintiffs.

David K. Kadane, New York City, for defendant.

Myron S. Isaacs, Associate General Counsel Securities and Exchange Commission, Washington, D. C., for intervenor-appellee.

Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.


In our prior opinion in this case, 2 Cir., 207 F.2d 931, we affirmed the order of the district court dismissing the action herein. We did so first on the ground that the action was a collateral attack and as such was prohibited by the injunction accompanying the consolidation decree. Moreover, we found that the claims presented were not new but had been passed on before or were known at the time of previous attacks on the decree. See, In re Long Island Lighting Co., 2 Cir., 197 F.2d 709. Thus the plaintiffs should have been barred from proceeding further on the basis of the allegations presented in the complaint. However, Judge Inch's order dismissing the action contained the following clause: "without prejudice to any further proceedings which the plaintiffs herein may desire to undertake, pursuant to this Court's reserved jurisdiction in said Civil Action No. 10,413, to vacate or modify the order in the aforesaid action by reason of the allegations set forth in the complaint herein." In view of our further finding of res judicata this clause should have been stricken out. Accordingly, we modify our former decision by striking out the above clause, and as modified we affirm the order dismissing the action below.

Judgment modified and as modified affirmed; mandate recalled and amended accordingly.