Patricia E. Newton and John F. Ohliger v. United States of America, Oscar Redding and Karl Ohliger , 308 F.2d 668 ( 1962 )

308 F.2d 668

Patricia E. NEWTON and John F. Ohliger, Plaintiffs-Appellants,
v.
UNITED STATES of America, Oscar Redding and Karl Ohliger, Defendants-Appellees.

No. 7.

Docket 27357.

United States Court of Appeals Second Circuit.

Argued October 3, 1962.

Decided October 3, 1962.

Appeal from order entered in the District Court for the Southern District of New York, Ryan, Chief Judge, denying motions under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. to vacate prior dismissal of the action for want of prosecution.

Affirmed from the bench.

Lawrence Waldman, New York City, for plaintiffs-appellants.

William F. Larkin, New York City, for appellee Karl Ohliger.

David R. Hyde, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., Southern District of New York, New York City, on the brief), for defendant-appellee United States.

Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

PER CURIAM.

1

We affirm the order of Chief Judge Ryan, denying the appellants' motion to vacate the dismissal of their complaint, for the reasons and on the authority cited in the companion case of Ohliger v. United States, 2 Cir., 308 F.2d 667.

2

Counsel's breach of duty to his clients is still more obvious in this case than in the companion case, for here, counsel did not even appear for the Review Call on December 7, 1960, at which time the appellants' complaint was dismissed without prejudice for lack of prosecution. Counsel contends that he was not notified of the call, but Judge Ryan, in denying the motion to set aside the dismissal, found that notice was duly given. Furthermore the Law Journal carried notice of this calendar call. Not only has the appellant failed to prosecute his suit and to answer the Government's interrogatories, but his motion to vacate the dismissal was delayed for another ten months after his suit was dismissed. The conduct of counsel is replete with dilatoriness which no court should condone; and counsel's plea of ignorance of federal procedure only compounds his carelessness. We find no abuse of discretion by the District Judge. Affirmed from the bench.