(dissenting in part).
I am of the opinion that there should be an affirmance.
I agree with the majority that under New Jersey Rule 4:2-2 there is available to the appellants an appeal to the New Jersey Supreme Court from the action of the State Court in ousting the out-of-state counsel. In view of this fact I am of the opinion that the District Judge was not guilty of an abuse of legal discretion in denying the motion for an injunction. Further, it would set a most unfortunate precedent if in situations where an appeal is available to litigants in proceedings in the State Courts the Federal Courts should intervene before there had been an exhaustion of the State remedies. It has been the policy of the Federal Courts, as stated in the majority opinion, to refrain from arresting the processes of the criminal law within the States unless there is “a showing of danger of irreparable injury ‘both great and immediate’ ”. Such showing has not been made in the instant case.
It is an anomaly to find that the District Judge’s discretion required “a withholding of his arm from interfering at an interlocutory stage in state litigation” and at the same time vacate the decree which does so. It is indicated that the action of this Court in vacating the decree is merely for the dual purpose of retaining jurisdiction until the appellants pursue the available remedies in the' State Courts and enabling the District Judge to act in the event that the State Courts deny appellants what the majority believe to be their constitutional rights.
I can see no reason for such a course. The District Judge having properly denied the motion for an injunction in the posture of the case as it existed at the time the motion was made, his judgment should be affirmed. To vacate the decree merely for the purpose of retaining jurisdiction carries the inevitable implication that the State Courts may act improperly in denying the, appellants their constitutional rights. It is not our function to police the State judiciary. The dangerous potentialities of such a situation need not be stressed An affirmance of the District Judge’s dismissal of the complaint and his denial of the motion for an injunction would not in any way preclude or prejudice a second complaint and motion, for an injunction should the State Courts not see eye to eye with the majority on the fundamental constitutional question involved.