On Petition for Rehearing
PER CURIAM.In seeking a rehearing and recall of our order of dismissal of these appeals petitioner-appellant attempts to show by an analysis of all the cases on our current docket that we have gone against the current practice of the judges in the Southern District of New York in making effective their decisions on motions. It finds 39 appeals from such decisions in the Southern and Eastern Districts of New York and makes its deductions from those cases. But we think its own figures show rather the contrary, namely, a quite high degree of compliance with the terms of the rules which we cited in' our original opinion, particularly when the differing state practice and the distaste, if not opposition, of some counsel for and to the federal practice is had in mind. Of the cases thus collected, the greater number were those wherein the deciding judge called for the submission of a proposed order, or directed settlement of an order, as is, of course, his undoubted right and power. See F.R. 58. Indeed, district judges have it in their control to remove all doubt by making explicit and beyond misunderstanding their directions either for immediate judgment or for later settlement of a formal decree. It is our hope that they will follow yet more generally the practice of precision. Other appeals were-those taken from memoranda of decision, in direct accord with our ruling, or were-from formal orders which constituted, the sole orders in those cases, together with an additional group which were promptly taken and timely on any basis-of computation. The residue, upon which, alone petitioner-appellant is forced to-rely as demonstrating our disruption of lower court practice through rendering-of appeals untimely, consists of 6 appeals, all in civil cases and all from the Southern District of New York.
These civil cases are of course not immediately pertinent and the contention is more an attack upon F.R. 58 and our ruling in United States v. Wissahickon Tool Works, 2 Cir., 200 F.2d 936, and. cases there cited, than upon our present, decision. Since some of these cases may-present questions for our later decision, we do not attempt any definitive analysis. at this time; but a general survey in*471dicates that the number of actual instances of untimely delay must be reduced, perhaps to the zero point.1 In any event the number is too insignificant to be disturbing or to offset the large measure of compliance shown by the other cases.
Petitioner-appellant also urges the effect of lack of post card or other notice of the decision, relying upon Oddo v. United States, 2 Cir., 171 F.2d 854, certiorari denied 337 U.S. 943, 69 S.Ct. 1498, 93 L.Ed. 1747, where we held receipt of the post card notice essential to the running of the time for appeal. Certainly notice is most important, although we find the respective contentions of the parties as to the practice in the clerk’s office as to giving notice confusing, if not misleading.2 Of course the clerk ought to send out notice of the decision when it is actually made, i. e., at the time of original entry of the judge’s definitive action. The civil rules specifically require notice of “the entry” of an order or judgment, F.R. 77(d); and the criminal rules are in accord, F.R.Cr.P. 49(c), and Oddo v. United States, supra. Moreover, lack of notice is a definite ground for the granting of some further time for appeal under F.R. 73 (a), as we have recently ruled.3 But we do not see how petitioner-appellant can claim any more time here, since it showed from its own acts that it was fully apprised of and acted upon Judge Goddard’s decision within four days after its rendition.
Petition denied.
. In one case already heard, Huber Baking Co. v. Stroehmann Bros. Co., 2 Cir., 208 F.2d 464, tlie running of the time for appeal was suspended by the filing and decision of a petition for rehearing, see F.R. 73(a), a fact overlooked by petitioner-appellant here. In another, De Pinho Vaz v. Shaughnessy, 2 Cir., 208 F. 2d 70, no point appears to have been raised by any party and the question became academic when the court agreed with the ruling below that tlie aciion could not proceed for lack of an indispensable party. How many of the remaining 4 appeals may be saved in like manner or as in our unreported decision, Nov. 5, 1953, on a motion in the pending appeal of Davis v. United States, affording appellant opportunity to secure the benefit of the extra time allowed under F.R. 73(a), in correlation with F.R. 6(b), we do not now know.
. In analyzing some 50 decisions on contested motions in the Southern District of New York, petitioner-appellant stresses the absence of any notice at the time of the memorandum decision by the judge, giving the distinct impression that such notices were sent after the entry of formal orders. But counsel for appellees assure us that no notices were sent at any time, thus destroying any implication as to a practice in the clerk’s office necessarily at variance with our ruling. Moreover, as asserted, formal orders were entered in not more than 6 eases, 2 of them upon specific direction by the court, and notices were not sent even in those cases.
. See supra note 1.