(concurring in part and dissenting in part).
I concur with my brother panel members in the dismissal of No. 25793, the government suit, for lack of appellate jurisdiction and I concur in vacating the district court’s judgment. I also concur with them in holding that the judgment order of Judge McGohey below in No. 25879, the stockholders’ derivative action, was not a final judgment order, and therefore not appealable as such. I disagree with them, however, insofar as they hold that the order below dismissing the Sixth Count in No. 25879 is appealable under 28 U.S.C. § 1292(a) (1) as an interlocutory order refusing an injunction ; but I wish it to be clear, nevertheless, that if I believed the issue were properly before us for determination I would agree with them and join with them in their disposition of the case.
The stockholders’ complaint contains various allegations of wrongdoing, i. 0., contains multiple claims against various defendants. Not all the counts arc joined in by the same plaintiffs or seek relief from the same defendants. In Counts 5, 6 and 7, however, there is complete identity of plaintiffs and defendants. The prayers for relief in the complaint include prayers for enjoining both temporarily 1 and permanently the performance and enforcement of certain contracts of the New Haven, one of whidh is the contract involved in No. 25793, the government action. Counts 5, 6 and 7 allege that this contract is a nullity and seek to enjoin its performance. No other contract is involved in these counts. The government action alleged this contract to be null and void because the New Haven had not obtained prior approval to enter into it from the Interstate Commerce Commission. Count 6 of the stockholders’ suit alleges that the contract is void for the same reason.
The government suit in its entirety having come before the trial judge for disposition, Count 6 of the stockholders’ suit was simultaneously disposed of also. No disposition was made of any of the other allegations in the stockholders’ suit, not even of Counts 5 and 7, despite the fact that these Counts related to the *548same contract attacked in Count 6, involved the identical parties plaintiff and identical parties defendant; and prayed for identical relief. Count 5 seeks to nullify the contract and enjoin its performance on the ground that its making was, and its performance would be, violative of Section 17(a) of the Investment Company Act of 1940, 15 U.S.C.A. § 80a 17(a). Count 7 seeks nullification and an injunction on the ground that the contract was made in violation of the charter provisions of the New Haven. Though I believe it well within his discretion for the trial judge to combine his consideration of the legal theory of recovery contained in Count 6 of the stockholders’ suit with his adjudication of the validity of that theory in the Government’s suit, I am of the opinion that the legal theories advanced by the stockholders in support of Counts 5 and 7 must also be resolved below beforS the question of whether this injunction was properly refused can become appeal-able.
It is my thought that we should not entertain an appeal under 1292(a) (1) until all the legal theories advanced to support or deny injunctive relief in connection with one claim of breach, or one claim of wrong, have been considered and adjudicated upon below. Otherwise we lay ourselves open to interlocutory appeals, piecemeal, first to review with respect to a single claim one theory of recovery or defense, and then another, and then yet another, so long as prayers for injunctions are contained in the pleadings and the pleadings are ruled upon below at separate times. This would result in poor judicial administration, would be contrary to the long-standing practice and policy of the federal courts, and could not have been contemplated as within the purview of 1292(a) (1). For instance, here, because petitioners set forth three separate and distinct legal theories to support the issuance of an injunction to prevent performance of a contract we could be faced with three separate appeals from the grant or denial of that prayer; yet the single claim before the court is whether, as a matter of law, that contract is a nullity.
Although the majority reverses the action of the court below with respect to the one count, the sixth, and orders that a permanent injunction issue, we are unanimous in holding that the order below with reference to this one count (which order is interpreted by the majority as an order refusing an injunction) was not a final order so as to be appealable as such. We state the order was not final and was not appealable because all theories of defendants’ liability were not disposed of below by the ruling.
The majority, however, grants prayers of final relief as a matter of law, though we all say we are not reversing a final order below denying relief. This final relief is granted by the taking of appellate jurisdiction over an order that we are unanimous in denominating an interlocutory, non-final order, and even though the court below did not adjudicate upon all theories of defendants’ liability.
It is claimed that we may properly do this, despite the clear inconsistency of doing so, not only by literally interpreting the statute, 1292(a) (1), but also on the authority of our decisions in three cases cited in the majority opinion. I only point out that in the instant case we have at least three theories of liability with reference to one contract and that contract is one of several contracts attacked in the suit, whereas a reading of the three cases relied upon will demonstrate that the portions of those cases permitted to be appealed dealt with quite different and broader problems of liability. In Telechron, which the majority particularly relies upon, the counts involved application of federal law on the one hand and state law on the other. The case of Schwartz v. Eaton, which the majority seeks to distinguish as not applicable here, was a case like this one, brought by stockholders, and a close reading of the opinion in that case appears to me to lend substantial support to the position I take.
*549By taking jurisdiction of this appeal under 28 U.S.C. § 1292(a) (1) the majority creates opportunities for harassment and delay in suits such as this. Cf. Baltimore Contractors v. Bodinger, 348 U.S. 176 at page 179 ff., 75 S.Ct. 249, at page 251, 99 L.Ed. 233; Schwartz v. Eaton, 2 Cir., 1959, 264 F.2d 195; Armstrong-Norwalk Rubber Corp. v. Local No. 283, 2 Cir., 1959, 269 F.2d 618, 621; Morgenstern Chemical Co. v. Shering Corp., 3 Cir., 1950, 181 F.2d 160,162.
I would grant the motion to dismiss the stockholders’ appeal.
On Application for Hearing in banc in Glenmore et al. v. Ahern et al., Docket 25879.
Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, and FRIENDLY, Circuit Judges.
Application denied.
. The question of whether a “temporary” injunction should issue was not before Judge McGohey at the time of the ruling sought to be appealed from. The stockholder plaintiffs moved for partial summary judgment on their sixth count, and if they had prevailed would have been entitled to a permanent injunction preventing performance of this one of the several contracts they were attacking. A cross-motion for summary judgment to dismiss the sixth count was filed by one of the 25 defendants. The cross-motion was granted as to that defendant. The stockholders’ motion was denied. In this wise the sixth count was dismissed, and my colleagues hold this dismissal to be the refusal of an injunction. It does not appear how many of the defendants had been served at this time, but at least nine of the twenty-five were.