Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
This is a motion for an order "extending the term of the court and the time of the appellant to file his assignments of error and to prepare, settle, certify and file his record on appeal until 60 days after the entry of the order to be entered on this motion."
A verdict was rendered for the defendant by a jury in this action on March 27, 1936. Judgment was entered on April 24, 1936, and was served upon the plaintiff, with notice of entry April 25, 1936. Plaintiff served an order, allowing the appeal, and a citation, July 13, 1936. The order provided "that the assignment of errors be filed on or before September 1, 1936." July 13, 1936, plaintiff applied to a judge of this court for an order "directing that the plaintiff-appellant's time to file his assignment of errors be extended 30 days after the stenographer's minutes are made available for inspection or copying by him and extending plaintiff's time until 60 days thereafter to perfect and file his record on appeal." This motion was denied.
A stipulation was entered July 28, 1936, between the plaintiff and defendant providing "that the time for the plaintiff-appellant to serve and file his record on appeal be and the same is hereby extended to and including October 31, 1936."
On October 20, 1936, plaintiff moved before this court that the court "approve an order extending his time to file his assignment of errors and record on appeal." An order then entered extended plaintiff's time to serve and file his record on appeal and assignment of errors to December 14, 1936. On December 7, 1936, plaintiff moved to "extend his time to file his assignment of errors and record on appeal in this cause until 90 days after the entry in the office of the clerk of the Supreme Court of the United States of the final orders to be entered in the Supreme Court upon the plaintiff-appellant's petition for certiorari to review the order of the circuit court denying plaintiff-appellant's petition for certiorari to review the order of the circuit court denying plaintiff-appellant's petition for a writ of mandamus against the Honorable Vincent Leibell and plaintiff-appellant's motion for leave to file, and petition for, a writ of mandamus against the Circuit Court of Appeals for the Second Circuit directing that it make an order permitting the plaintiff-appellant to copy the stenographer's minutes of the trial of the plaintiff-appellant used by the trial judge or the defendant's copy so that he may perfect and file the record on appeal." This motion was granted. The Supreme Court on December 7, 1936, denied the application for the aforesaid writs. Ex prate McCann, 57 S. Ct. 228, 81 L. Ed. --; McCann v. Leibell, 57 S. Ct. 233, 81 L. Ed. --.
Pursuant to these orders, it became necessary for the plaintiff-appellant to serve and file his record on appeal and assignment of erros on or before March 4, 1937. On March 1, 1937, plaintiff made this motion.
He has not heretofore prepared and filed any bill of exceptions approved by the trial judge nor by any other judge within the district. No extension of time within which to file such bill of exceptions has been applied for or granted pursuant to rule 25b of the General Rules of the United States District Courts or rule 6 of the District Court for the Southern District of New York. It is now too late to do so. If the plaintiff pursues his appeal further, he may be heard only on the judgment roll.