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INDEX FUND, INC. v. INSURANCE CO. OF NORTH AMERICA

No. 771, Docket 77-7600.

580 F.2d 1158 (1978)

INDEX FUND, INC., Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.

United States Court of Appeals, Second Circuit.

Decided August 1, 1978.

Rehearing Denied September 14, 1978.

Attorney(s) appearing for the Case

Charles E. McGuinness, New York City, for plaintiff-appellant.

William P. Sullivan, Jr., New York City (Bigham, Englar, Jones & Houston, New York City), for defendant-appellee.

Jacob H. Stillman, Principal Asst. Gen. Counsel, S.E.C., Washington, D. C. (Harvey L. Pitt, Gen. Counsel, Sue E. Auerbach and John M. Metzger, Attys., S.E.C., Washington, D. C., of counsel), for Securities and Exchange Commission, amicus curiae.

Sullivan & Cromwell, New York City, Marvin Schwartz, Stephen K. West and Ann T. Bailen, New York City, on the brief, for Investment Company Institute, amicus curiae.

Before KAUFMAN, Chief Judge, and SMITH and MESKILL, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal in an action on a fidelity bond from a judgment of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, entered for the defendant bonding company notwithstanding the verdict and ordering a remittitur or a new trial in the event this judgment is vacated or reversed. We reverse the judgment n. o. v. and affirm the order granting a new trial nisi.

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