360 F2d 211 Annenberg v. Alleghany Corporation Schwartz

360 F.2d 211

Jeanette ANNENBERG, Plaintiff-Appellant,
ALLEGHANY CORPORATION and the Chesapeake and Ohio Railway
Co., Defendants-Appellees.
Sandor SCHWARTZ, Plaintiff-Appellant,
Cyrus S. EATON, Walter J. Tuohy, Cyrus S. Eaton, Jr.,
Clinton W. Murchison, Anita O'Keeffe Young, as Executrix of
the estate of Robert R. Young, Deceased,
Defendants-Appellees, and Robert Bowman, Allan B. Kirby,
Alleghany Corporation and the Chesapeake & Ohio Railway Co.,
et al., Defendants.

Nos. 274, 305, Dockets 30147, 30213.

United States Court of Appeals Second Circuit.

Argued March 30, 1966.
Decided May 19, 1966.

Norman Annenberg, New York City, for appellant Annenberg.

Rogers, Hoge & Hills, Sidney P. Howell, Jr., Marie V. Driscoll, New York City, for Alleghany Corporation.

Donovan, Leisure, Newton & Irvine, New York City (Carl E. Newton, James M. MacNee, III, M. Lauck Walton, New York City, of counsel), for Chesapeake & Ohio Ry.

J. Milton Fainer, Sidney L. Garwin, Bertram Bronzaft, New York City, for appellant Schwartz.

Donovan, Leisure, Newton & Irvine, New York City (Carl E. Newton, M. Lauck Walton, New York City, of counsel), for appellees Eaton, Tuohy and Eaton, Jr.

Satterlee, Warfield & Stephens (Henry J. Formon, Jr., New York City, of counsel), for appellee Murchison.

Lord, Day & Lord, New York City (Thomas F. Daly, William E. McCurdy, Jr., New York City, of counsel), for appellee Young.

Before WATERMAN, MOORE and FEINBERG, Circuit Judges.


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In No. 30213, plaintiff Schwartz appeals from an order of the United States District Court for the Southern District of New York in Schwartz v. Bowman, his stockholder's derivative action against several defendants on behalf of Chesapeake & Ohio Railway Co., in which case motions by each of the defendants-appellees for dismissal of the complaint and for summary judgment pursuant to Rules 12(b) and 56(b) F.R.Civ.P. were granted.


In No. 30147, plaintiff Annenberg, who had brought her stockholder's derivative action on behalf of Alleghany Corporation, appeals from the granting on the same day by the same court of a similar motion made in her case by defendant Chesapeake & Ohio Railway Company.


The motions were disposed of together, counsel for the plaintiffs in the two actions submitting joint papers in opposition to the motions. The motions were granted as to defendants-appellees in both cases on the ground that as to them the court had no subject-matter jurisdiction over the two complaints.


Judge Bryan rendered an opinion in Schwartz v. Bowman, reported at 244 F.Supp. 51 (S.D.N.Y.1965), and filed a memorandum opinion the same day in Annenberg, in which he stated he was dismissing the latter complaint entirely for the reasons expressed in his opinion in Schwartz v. Bowman.


We affirm the judgments below dismissing the complaint in Annenberg and the complaint as to the defendants-appellees in Schwartz on the exhaustive and learned opinion below of Judge Bryan in Schwartz v. Bowman and on his unreported memorandum opinion in Annenberg v. Alleghany.