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BROOKLYN EASTERN DIST. TERMINAL v. UNITED STATES

28 F.2d 634 (1927)

BROOKLYN EASTERN DIST. TERMINAL v. UNITED STATES et al.

District Court, S. D. New York.

July 28, 1927.

Attorney(s) appearing for the Case

John F. Finerty, of Washington, D. C., and Henry B. Closson, of New York City, for petitioner.

P. J. Farrell, of Washington, D. C., for the Interstate Commerce Commission.

Blackburn Esterline, of Washington, D. C., for the United States.

Before L. HAND and AUGUSTUS N. HAND, Circuit Judges, and GODDARD, District Judge.

L. HAND, Circuit Judge (after stating the facts as above).

We are in some doubt as to the proper constitution of the District Court in such a case. In Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L. Ed. 699, the Supreme Court held that, under section 266 of the Judicial Code (28 USCA § 380), three judges need not sit, unless the plaintiff had pressed to a hearing his prayer for a preliminary injunction. This conclusion depended...

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