(dissenting).
I think the appeal should not have been dismissed.
This suit was brought in admiralty. But the district court ordered it transferred to the common law side of the court, for a trial by jury. Appellant appealed from that order, but this court dismissed that first appeal, on the ground that the order was interlocutory and not appealable. Thereafter, the case was tried before a jury, which returned a verdict for defendant. From the final judgment entered on that verdict plaintiff now seeks to appeal.
My colleagues have ordered this appeal dismissed, on the ground that the suit is a civil (non-admiralty) suit, where notice ■of appeal must be filed within sixty days after entry of judgment, whereas plaintiff’s notice of appeal was filed seventy-one days thereafter. If this is a suit in admiralty, plaintiff had ninety days to file notice of appeal, and the appeal is timely. But my colleagues rest their decision on the ground that the order transferring the suit to the common law side constituted this a civil suit for appeal purposes, regardless of whether or not the trial judge erred in ordering that transfer and although (as we previously held) plaintiff could not appeal from that order until the court entered the final judgment from which plaintiff is now trying to appeal.
I do not agree. Of course, in a proper case, such a transfer order is proper.1 But if, on the facts of this case, the order was erroneous, then the suit did not, by virtue of that erroneous order, cease to be in admiralty. Consequently, before dismissing the appeal, I think we should decide whether that order was in error. If so, the appeal, I think, is timely.
. See, e. g., United States ex rel. Pressprich & Son Co. v. James W. Elwell & Co., 2 Cir., 250 F. 939, James Richardson & Sons v. Conners Marine Co., 2 Cir., 141 F.2d 226, 229; Cory Bros. & Co. v. United States, 2 Cir., 51 F.2d 1010, 1013; Prince Line v. American Paper Exports, 2 Cir., 55 F.2d 1053, 1056.