Opinion
No. 5740.
June 5, 1935.
Appeal from the District Court of the United States for the District of New Jersey.
For opinion below, see 10 F. Supp. 852.
Oscar W. Jeffery and Reginald Hicks, both of New York City, and Edward Hollander and Hollander, Leichter Klotz, all of Union City, N.J., for appellant.
Lindabury, Depue Faulks, of Newark, N.J. (Josiah Stryker, of Newark, N.J., of counsel), for appellee.
Before BUFFINGTON and THOMPSON, Circuit Judges, and JOHNSON, District Judge.
The continuous sessions, preparation for conference, study of briefs and proofs incident to this court's work have, since the hearing of this case, united to preclude its earlier disposition.
The court below was confronted by a situation which involved a range of discretion, a balancing of equities, and consideration of the relative alleged hardship to such party in the grant or refusal of an injunction pending final hearing. In the exercise of that discretion, the court below, in a careful order, has seen fit to grant an injunction against the defendant and require the plaintiff to give a protective bond. After full consideration, we find no abuse of discretion in the court's action and therefore dismiss defendant's appeal; but, to insure the prompt bringing of the case to final hearing, this order is made conditional that, unless the plaintiff proceeds to bring the case to final hearing and closes its testimony within ninety days from this date, the defendant may apply to this court for a modification of the order dismissing the appeal, for which purpose this court retains jurisdiction.