Application of Joseph Dean Edwards for a Writ of Mandamus to the Judges of the United States District Court for the Southern District of New York

FRIENDLY, Circuit Judge

(concurring) :

I concur in the opinion except so much as intimates that although the writ will not issue to Edwards, it might issue to correct an erroneous denial of severance in an exceptional case. This is the same kind of effort to preserve an appellate jurisdiction which creates an almost endless opportunity for delay although it will almost never be exercised, against which I protested in A. Olnick & Sons v. Dempster Brothers, Inc., 365 F.2d 439, 445 (2 Cir. 1966). Every defendant regards his case as exceptional and will try to convince us that it falls within the exception vaguely outlined in the opinion. As Judge Merrill has well written, to entertain petitions for mandamus in eases like this “would defeat the public interest which Cobbledick sought to protect as completely , as would an appeal,” United States v. Moore, 368 F.2d 990, 991 (9 Cir. 1966). That wisdom also lay behind Judge Hays’ concurrences in Application of Gottesman, 332 F.2d 975 (2 Cir. 1964) and Application of Cohn, 332 F.2d 976 (2 Cir. 1964), where he said that mandamus will not lie “for the purpose of pressing a premature appeal.” We should deny on that simple and satisfying ground.