January 12, 1965
ALLEGHANY CORPORATION, PLAINTIFF-APPELLANT,
ALLAN P. KIRBY, CHARLES T. IRELAND, JR., AND FRED M. KIRBY, DEFENDANTS-APPELLEES, RANDOLPH PHILLIPS, DEFENDANT.
Before WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, MARSHALL and ANDERSON, Circuit Judges.
Subsequent to the filing of the three opinions in this case on May 19, 1964, reported at 333 F.2d 327, plaintiff-appellant petitioned for a rehearing by the full court. This petition was granted on July 22, 1964, Chief Judge Lumbard disqualifying himself and not participating. Later, the court having ordered that the rehearing be without oral argument, briefs were submitted by the parties, the last and final brief in rebuttal having been filed on November 9, 1964.
Upon consideration of the petition and subsequently filed memoranda, the court is evenly divided as to proper disposition of the case, for Judges Moore, Kaufman, Marshall and Anderson would affirm the decision below, reported at 218 F. Supp. 164 (S.D.N.Y.1963, Dawson, J.) and Judges Waterman, Friendly, Smith and Hays would reverse that judgment and would remand the case to the district court for further hearing there*fn1
Accordingly, the judgment below is affirmed.