Botta v. Scanlon

314 F.2d 392 (1963) | Cited 46 times | Second Circuit | March 8, 1963

Before LUMBARD, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.

Per Curiam: As plaintiffs-appellants have expressed their desire to pay the tax assessment in whole or in part, file a claim for refund and sue to recover such refund, it would seem a preferable procedure for them to commence a new action upon the basis of these new facts after they have taken place. To facilitate this procedure, and in the interest of substantial justice, we amend our mandate and decision herein and direct that the order appealed from be affirmed without costs, and that the District Court be directed to dismiss the action, without prejudice, also without costs.

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