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Levin v. Ruby Trading Corp.

decided: November 4, 1965.

GEORGE C. LEVIN, AS TRUSTEE IN REORGANIZATION OF THE ESTATES OF SWAN-FINCH OIL CORPORATION, KETA GAS AND OIL COMPANY AND SWAN-FINCH PETRO CHEMICAL CORPORATION, PLAINTIFF-APPELLEE,
v.
RUBY TRADING CORPORATION, LOWELL M. BIRRELL, HERBERT A. BIRRELL, HARRY CASPER AND LOIS B. MORRILL, DEFENDANTS, PETER JAKOBSON, PETER JAKOBSON CORPORATION, DEFENDANTS-APPELLANTS



Waterman, Moore and Friendly, Circuit Judges.

Author: Per Curiam

This action, wherein a trustee in re-organization of certain corporations once dominated by Lowell Birrell asserts title to a Park Avenue apartment building, is before us for the third time, see Matter of Swan-Finch Oil Corp., 2 Cir., 313 F.2d 140, cert. denied, Jakobson v. Levin, 375 U.S. 813, 84 S. Ct. 44, 11 L. Ed. 2d 49 (1963); Levin v. Ruby Trading Corp., 2 Cir., 333 F.2d 592 (1964), although no trial has yet been held. Peter Jakobson, holder of a lease of the building, and Peter Jakobson Corporation, a contract vendee, who have been allowed to intervene pursuant to our direction, appeal from an order of Judge Palmieri insofar as it denied their motion to terminate the "temporary" receivership of the building instituted nearly three years ago.*fn1 They contend that the trustee has inexcusably delayed prosecution of the action, and that papers on file in the District Court demonstrate he cannot succeed. Judge Palmieri thought otherwise but urged the trustee "to employ competent counsel and whatever other personnel may be indicated, with a view to expediting this litigation."*fn2

Appellants properly point out that provisional remedies, such as interlocutory injunctions and receiverships, ought not to be continued indefinitely in favor of a plaintiff who neglects or refuses to bring his action to trial. Compare Folk v. United States, 233 F. 177 (8 Cir. 1916) (Sanborn, J.). We find it hard to be as indulgent with the trustee as was the district judge. We are unable to understand, for example, why, despite the clear intimation in our opinion of June 9, 1964, that plaintiff ought "to get ahead with the principal subject of the action," 333 F.2d at 595, no effort was made to serve Herbert Birrell until after the filing of appellants' motion in mid-April 1965, although we had pointed out that "a combination of F.R.Civ.Proc. 4(e) and ยงยง 314 and 315 of the New York CPLR or their predecessors has always permitted this so far as his interests in the real property were concerned." 333 F.2d at 595. We think it is time to supplement admonitions with stronger medicine more likely to achieve ...


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