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SCHWARTZ v. STRAUSS

No. 294, Docket No. 22780.

206 F.2d 767 (1953)

Bernard SCHWARTZ, Plaintiff-Appellant, v. Milton STRAUSS, "John Doe," "Richard Roe," et al., names fictitious, being unknown to plaintiff, individually and jointly as members of Local Board No. 24, Bronx, Selective Service System and Local Board No. 24, Bronx, Selective Service System and "John Smither," "Frank Jones," "Henry Brown" and "James Koe," names fictitious, being unknown to plaintiff, Individually and jointly as members of the Board of Appeals, Selective Service System, and the Board of Appeals of the Selective Service System, Defendants-Appellees.

United States Court of Appeals Second Circuit.

Decided July 16, 1953.

Attorney(s) appearing for the Case

Nemeroff, Jelline, Danzig & Paley, New York City, for plaintiff-appellant; Bernard Schwartz and Joseph W. Rosenberg, New York City, of counsel.

J. Edward Lumbard, Jr., U. S. Atty., New York City, Samuel R. Pierce, Jr., Asst. U. S. Atty., New York City, of counsel, for defendants-appellees.

Before CHASE, Chief Judge, and CLARK and FRANK, Circuit Judges.

PER CURIAM.

Judgment affirmed on opinion below. D. C. 114 F.Supp. 438.

FRANK, Circuit Judge (concurring).

The facts here are undisputed. But the position taken by defendant's counsel is that, even if the undisputed facts show unmistakably that the Board violated the statute, i. e., plainly exceeded its powers, nevertheless no court would have jurisdiction to enjoin plaintiff's induction. Thus if admittedly plaintiff...

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