Aetna Cas. & Sur. Co. v. Theda v. Giesow, 412 F.2d 468 (2d Cir. 1969). · Go Syfert
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Aetna Cas. & Sur. Co. v. Theda v. Giesow, 412 F.2d 468 (2d Cir. 1969). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, last quoted 1991 · 3 courts · …where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper. at p. 471 ✓
97 citation events (6 in the last 25 years) across 31 distinct courts.
Treatment trajectory · 1969 → 2026 · click a year to view as-of
1969 1997 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Maritza Melendez v. Kristi Noem, Secretary, U.S. Department of Homeland Security
D.N.J. · 2025 · confidence medium
Thus, “[t]he partial adjudication of a single claim is not appealable, despite a rule 54(b) certification.” Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d 1150 , 1154 (3d Cir. 1990) (citing Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969)).
discussed Cited as authority (rule) Purugganan v. AFC Franchising, LLC
D. Conn. · 2021 · confidence medium
Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969) (finding that it is the claims at issue rather than the number of formal counts which determines whether summary judgment may be sought); Rieser v. Baltimore & Ohio Railroad Co., 224 F.2d 198, 199 (2d Cir. 1955) (the test for multiple claims is whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced).
cited Cited as authority (rule) In Re September 11 Litigation
S.D.N.Y. · 2009 · confidence medium
Lines, Inc., 861 F.2d 23, 26 (2d Cir.1988) (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969)).
cited Cited as authority (rule) Consolidated Edison Co. v. Port Authority of New York & New Jersey
S.D.N.Y. · 2009 · confidence medium
Lines, Inc., 861 F.2d 23, 26 (2d Cir.1988) (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969)).
discussed Cited as authority (rule) Stetzer v. Dunkin' Donuts, Inc.
D. Conn. · 2000 · confidence medium
However, if the contractual language is “susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper.” Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969).
discussed Cited as authority (rule) Bruce Clarke & Good Earth Recycling, Inc. v. Mindis Metals, Inc.
6th Cir. · 1996 · confidence medium
Merrill Lynch, Pierce, Fenner & Smith v. Knudson, 749 F.2d 496, 498 (8th Cir.1984); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir.1969); see also Acha v. Beame, 570 F.2d 57, 62 (2d Cir.1978) (defining "claim" in context of Rule 54(b)); Original Ballet Russe v. Ballet Theatre, 133 F.2d 187, 189 (2d Cir.1943) (defining "claim" in context of Rule 10(b)).
cited Cited as authority (rule) Harry J. Gerardi Coolidge J. Marqueen Estate of Coolidge J. Marqueen v. Leonard A. Pelullo David Hellhake David Niefield Raul Corona Moshe Milstein Alan Weisberger Compton Press, Inc. Equity Finance Group, Inc. Compton Press Inc. Employees' Profit Sharing Retirement Plan Compton Press, Inc. Employees' Thrift Plan, by and Through Its Trustees and Administrators Mark P. Correia Wayne Decker Frank Genthe, Ronald Lockwood v. Granada Investments, Inc. Andrew N. Heine Away to Travel-South, Inc. Away to Travel-South Real Estate, Inc. Away to Travel-South (Georgia), Inc. Murray Schwartz Fred A. Schwartz Granada Investments, L.P. Granada Investments, Inc. Andrew N. Heine, Third-Party v. Leonard A. Pelullo Peter F. Pelullo Equity Finance Group, Inc. Fairview Financial Corporation Global Financial Corporation John Doe Trusts George Hellhake G.H. Enterprises, Inc. Coolidge J. Marqueen Estate of Harry J. Gerardi David G. Hellhake Raul Corona, Third-Party Granada Investments, Inc., Andrew N. Heine, and Granada Investments, L.P.
3rd Cir. · 1994 · confidence medium
Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir.1969).
cited Cited as authority (rule) Gerardi v. Pelullo
3rd Cir. · 1994 · confidence medium
Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir.1969).
discussed Cited as authority (rule) David E. McELROY, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee (2×) also: Cited "see, e.g."
8th Cir. · 1992 · confidence medium
Co. v. Giesow, 412 F.2d 468, 471 (2nd Cir.1969)).
discussed Cited as authority (rule) Merrell Dow Pharmaceuticals, Inc. v. Oxendine (2×)
D.C. · 1991 · confidence medium
However, as we have recognized, “the partial adjudication of a single claim is not appealable regardless of whether there is a Rule 54(b) certificate.” Cohen v. Owens & Co., Inc., 464 A.2d 904, 906 (D.C.1983), quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir.1969).
cited Cited as authority (rule) Boatmen's First National Bank of Kansas City, a Federally Chartered Bank v. P.P.C., Inc., a Delaware Corporation
1st Cir. · 1991 · confidence medium
Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969).
cited Cited as authority (rule) Sussex Drug Products v. Kanasco, Ltd.
3rd Cir. · 1990 · confidence medium
Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir.1969).
cited Cited as authority (rule) Sussex Drug Products v. Kanasco, Ltd.
3rd Cir. · 1990 · confidence medium
Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir.1969).
discussed Cited as authority (rule) National Union Fire Insurance Co. of Pittsburgh v. Alexander
S.D.N.Y. · 1989 · confidence medium
Therefore, resolution of defendants’ breach of contract claim must await trial. 7 See Leberman v. John Blair & Co., 880 F.2d 1555, 1559 (2d Cir.1989) (“When a written contract is ambiguous, a triable issue of fact exists as to its interpretation, thus precluding the entry of summary judgment.”); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969) (“Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper.”) It should be noted that resolution of defendan…
discussed Cited as authority (rule) Uniroyal, Inc. v. Home Insurance
E.D.N.Y · 1988 · confidence medium
For example, the Second Circuit declared as recently as this year: “ ‘Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment [is] improper.’ ” Garza v. Marine Transport Lines, Inc., 861 F.2d 23 (2d Cir.1988), quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969).
discussed Cited as authority (rule) Ricardo Garza v. Marine Transport Lines, Inc., and Third-Party v. Norfolk Shipbuilding & Drydock Corporation, Third-Party
2d Cir. · 1988 · confidence medium
“Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment [is] improper.” Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969); accord Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d Cir.1985); Heyman, 524 F.2d at 1320 . 2.
discussed Cited as authority (rule) American Home Assurance Co. v. Baltimore Gas & Electric Co.
2d Cir. · 1988 · confidence medium
However, “ ‘[wjhere contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment [is] improper.’ ” Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975) (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969)).
discussed Cited as authority (rule) American Home Assurance Company v. Baltimore Gas & Electric Company
2d Cir. · 1988 · confidence medium
However, " '[w]here contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment [is] improper.' " Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975) (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969)).
discussed Cited as authority (rule) Walk-In Medical Centers, Inc. v. Breuer Capital Corp.
S.D.N.Y. · 1986 · confidence medium
However, if the “contractual language is *1017 susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment [is] not proper.” Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975) (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969)).
discussed Cited as authority (rule) William Rothenberg v. Lincoln Farm Camp, Inc.
2d Cir. · 1985 · confidence medium
However, “[wjhere contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment [is] improper.” Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975) (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969)); see M.
cited Cited as authority (rule) Jurrius v. MacCabees Mutual Life Insurance
D. Conn. · 1984 · confidence medium
Heyman, supra, at 1320 , quoting Aetna Casualty & Surety Company v. Giesow, 412 F.2d 468, 471 (2d Cir.1969).
discussed Cited as authority (rule) Burton M. Abrams and Marguerite M. Abrams v. Interco Incorporated
2d Cir. · 1983 · confidence medium
Although the point has not been raised by the parties, we must nevertheless consider whether dismissal of plaintiffs’ action prior to the determination of the amount of attorneys’ fees to be awarded constitutes such a judgment. 2 While we have held that where reasonable attorneys’ fees are a contractually specified element of damages, a judgment on the merits failing to set the amount of the fees is not a final judgment, Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2 Cir.1969); Union Tank Car Co. v. Isbrandtsen, 416 F.2d 96, 97 (2 Cir.1969) (per curiam), we suggested in dict…
discussed Cited as authority (rule) Cohen v. Owens & Co., Inc.
D.C. · 1983 · confidence medium
See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737 , 96 S.Ct. 1202 , 47 L.Ed.2d 435 (1976); Acha v. Beame, supra, 570 F.2d at 62 ; Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir.1969) (“the partial adjudication of a single claim is not appealable regardless of whether there is a Rule 54(b) certificate ... ”).
discussed Cited as authority (rule) Beacon Syracuse Associates v. City of Syracuse
N.D.N.Y. · 1983 · confidence medium
“Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper.” Aetna Casualty Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980).
cited Cited as authority (rule) General Public Utilities Corp. v. Babcock & Wilcox Co.
S.D.N.Y. · 1982 · confidence medium
Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969).
discussed Cited as authority (rule) Heheman v. Scripps Company
6th Cir. · 1981 · confidence medium
E. g., id. at 584; Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969); Cram v. Sun Insurance Office, Ltd., 375 F.2d 670, 674 (4th Cir. 1967). 74 The meaning of the relevant language in the 1976 collective bargaining agreement is sufficiently ambiguous to warrant further factual inquiry; the interpretations set out by both the substitute printers and Scripps are plausible ones.
cited Cited as authority (rule) Heheman v. E. W. Scripps Co.
6th Cir. · 1981 · confidence medium
E. g., id. at 584; Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969); Cram v. Sun Insurance Office, Ltd., 375 F.2d 670, 674 (4th Cir. 1967).
cited Cited as authority (rule) Winthrop F. Davis v. Chevy Chase Financial Limited and B. Francis Saul
D.C. Cir. · 1981 · confidence medium
Heyman, 524 F.2d at 1320 (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969)).
discussed Cited as authority (rule) Bacon v. Penney
Me. · 1980 · confidence medium
Acha v. Reame, 570 F.2d 57 , 62 (2nd Cir.1978). “[Tjhe partial adjudication of a single claim is not appeal-able, regardless of whether there is a Rule 54(b) certificate.” Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2nd Cir.1969).
discussed Cited as authority (rule) Johnson v. University of Bridgeport
2d Cir. · 1980 · confidence medium
Union Tank Gar Co. v. Isbrandtsen, 416 F.2d 96, 97 (2d Cir. 1969) (per curiam); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969); cf. Acha v. Reame, 570 F.2d 57 , 62 (2d Cir. 1978) (partial summary judgment reserving consideration of further relief not “final”); Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 69-70 (2d Cir. 1973) (appeal improper after entry of judgment for principal, but before adjudication of prejudgment interest).
discussed Cited as authority (rule) 24 Fair empl.prac.cas. 1608, 24 Empl. Prac. Dec. P 31,230
2d Cir. · 1980 · confidence medium
Union Tank Car Co. v. Isbrandtsen, 416 F.2d 96, 97 (2d Cir. 1969) (per curiam); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969); cf. Acha v. Beame, 570 F.2d 57, 62 (2d Cir. 1978) (partial summary judgment reserving consideration of further relief not "final"); Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 69-70 (2d Cir. 1973) (appeal improper after entry of judgment for principal, but before adjudication of prejudgment interest).
discussed Cited as authority (rule) Erie County Water Authority ex rel. Price Bros. v. Hen-Gar Construction Corp.
W.D.N.Y. · 1979 · confidence medium
The law in this circuit is clear that “[wjhere contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper.” Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969); Hey-man, supra, at 1320.
discussed Cited as authority (rule) ERIE COUNTY WATER AUTH., ETC. v. Hen-Gar Const.
W.D.N.Y. · 1979 · confidence medium
The law in this circuit is clear that "[w]here contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper." Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969); Heyman, supra, at 1320 .
discussed Cited as authority (rule) Biro v. Schombert
Md. · 1979 · confidence medium
App. at 709 , upon reviewing the federal cases, and particularly the Vreelandand Marino cases as discussed above, concluded: *297 Accord, International Controls Corp. v. Vesco, 535 F. 2d 742, 748 (2d Cir. 1976), cert. denied, 434 U. S. 1014 , 98 S. Ct. 730 , 54 L.Ed.2d 758 (1978) (“the [trial] court may utilize its Rule 54 (b) powers with respect to a given claim only if all damages stemming from that claim have been fixed”); Cinerama, Inc. v. Sweet Music, S.A., 482 F. 2d 66, 69 (2d Cir. 1973); Aetna Casualty & Surety Company v. Giesow, 412 F. 2d 468, 470 (2d Cir. 1969); Henderson v. Hassu…
discussed Cited as authority (rule) In Re Air Crash Disaster at John F. Kennedy International Airport
E.D.N.Y · 1978 · confidence medium
See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737 , 743 n. 4, 96 S.Ct. 1202 , 47 L.Ed.2d 435 (1976); Cinerama, Inc. v. Sweet Music, S. A., 482 F.2d 66, 69 (2d Cir. 1973); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969).
discussed Cited as authority (rule) 16 Fair empl.prac.cas. 526, 15 Empl. Prac. Dec. P 8040 Beraldine L. Acha and Arlene M. Egan, Each Individually and on Behalf of All Others Similarly Situated v. Abraham D. Beame, Individually and in His Capacity as Mayor of the City of New York, Michael J. Codd, Individually and in His Capacity as Police Commissioner of the New York City Police Department, and the City of New York, as a Public Employer
2d Cir. · 1978 · confidence medium
Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737 , 743 n. 4, 96 S.Ct. 1202 , 47 L.Ed.2d 435 (1976); Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 69 (2d Cir. 1973); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969); RePass v. Vreeland, 357 F.2d 801, 805-06 (3d Cir. 1966); Restatement (Second) of Judgments, § 61, (Tent.Draft No. 1, 1973). 21 It follows that where, as in the instant case, a partial summary judgment is rendered with respect to only part of the relief sought by the appellants, and where consideration of further relief is specifically reserved, judgme…
discussed Cited as authority (rule) Acha v. Beame
2d Cir. · 1978 · confidence medium
Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737 , 743 n. 4, 96 S.Ct. 1202 , 47 L.Ed.2d 435 (1976); Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 69 (2d Cir. 1973); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969); RePass v. Vreeland, 357 F.2d 801, 805-06 (3d Cir. 1966); Restatement (Second) of Judgments, § 61, (Tent.Draft No. 1, 1973).
cited Cited as authority (rule) Panesis v. Loyal Protective Life Insurance
Mass. App. Ct. · 1977 · confidence medium
Co. v. Giesow, 412 F. 2d 468,471 (2d Cir. 1969).
discussed Cited as authority (rule) United Brands Co. v. Intermediate Credit Corp.
S.D.N.Y. · 1977 · confidence medium
While this might appear to be a question of construction and, therefore, a matter for the court to resolve, it is the long-standing rule of this circuit that “contractual language . . . susceptible of at least two fairly reasonable interpretations presents a triable issue of fact,” e. g., Aetna Casualty & Surety Company v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969), which entitles the parties to present evidence to the trier of fact.
discussed Cited as authority (rule) Frank Lowell v. Twin Disc, Incorporated
2d Cir. · 1975 · confidence medium
Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2 Cir. 1975); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2 Cir. 1969); Lemelson v. Ideal Toy Corp., 408 F.2d 860, 863-64 (2 Cir. 1969).
discussed Cited as authority (rule) Annette Heyman v. Commerce and Industry Insurance Company
2d Cir. · 1975 · confidence medium
Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969); Painton & Co. v. Bourns, Inc., 442 F.2d 216, 233 (2d Cir. 1971); Lemelson v. Ideal Toy Corp., 408 F.2d 860, 863 (2d Cir. 1969); Union Insurance Society v. Wm.
cited Cited as authority (rule) Reserve Mining Company, a Minnesota Corporation v. Environmental Protection Agency and William D. Ruckelshaus, Individually Andas Administrator of the Environmental Protection Agency, Reserve Mining Company v. United States of America, United States of America v. Reserve Mining Company, Reserve Mining Company v. United States of America, the State of Wisconsin v. Reserve Mining Company, Minnesota Environmental Law Institute, Inc. v. United States of America, the State of Michigan v. Reserve Mining Company
8th Cir. · 1975 · confidence medium
Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969); United States v. Burnett, 262 F.2d 55, 58-59 (9th Cir. 1958).
cited Cited as authority (rule) Reserve Mining Co. v. Environmental Protection Agency
8th Cir. · 1975 · confidence medium
Co. v. Giesow, 412 F.2d 468, 470 (2d Cir. 1969); United States v. Burnett, 262 F.2d 55, 58-59 (9th Cir. 1958).
discussed Cited "see" Primavera Familienstifung v. Askin
S.D.N.Y. · 2001 · signal: see · confidence high
See Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2d Cir.1969); Centennial Textiles, 220 B.R. at 181 . 94 Under this principle, Count X is best understood as a grouping together of multiple claims, i.e., the objections to each of three proofs of claim filed by DLJ in the bankruptcy proceedings against Granite Corp., Granite Partners, and Quartz, respectively.
discussed Cited "see" Hirsch v. Gersten (In Re Centennial Textiles, Inc.)
Bankr. S.D.N.Y. · 1998 · signal: see · confidence high
See Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468 (2d Cir.1969); Rieser v. Baltimore & Ohio Railroad Co., 224 F.2d 198, 199 (2d Cir.1955), cert. denied, 350 U.S. 1006 , 76 S.Ct. 651 , 100 L.Ed. 868 (1956).
discussed Cited "see" Unker v. Joseph Markovits, Inc.
S.D.N.Y. · 1986 · signal: see · confidence high
If, on the other hand, contractual language is susceptible of at least two fairly reasonable interpretations, “summary judgment is perforce improper.” Wards v. Stamford Ridgeway Associates, 761 F.2d 117, 120 (2d Cir.1985); see Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969).
discussed Cited "see" WILLIAM MORROW & COMPANY INC. v. Davis
S.D.N.Y. · 1984 · signal: see · confidence high
See 3A Corbin, Contracts, § 563 at 360. “[D]iscerning contractual intent ... ‘[w]here contractual language is susceptible of at least two fairly reasonable interpretations ... presents a triable issue of fact, and summary judgment would be improper.’ ” Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975) (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir.1969)).
cited Cited "see" England Strohl/Denigris, Inc. v. Weiner
S.D.N.Y. · 1982 · signal: see · confidence high
Co., supra, 524 F.2d at 1320 ; see Aetna Casualty and Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969).
cited Cited "see" Cole v. Peterson Realty, Inc.
Me. · 1981 · signal: see · confidence high
See Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 470 (2nd Cir. 1969).
discussed Cited "see" Boeing Co. v. Van Gemert (2×)
SCOTUS · 1980 · signal: see · confidence high
See Aetna Casualty & Surety Co. v. Giesow, 412 F. 2d 468 (1969) (suit for breach of subordination agreement); Union Tank Car Co. v. Isbrandtsen, 416 F. 2d 96 (1969) (suit to enforce settlement agreement).
Retrieving the full opinion text from the archive…
AETNA CASUALTY & SURETY COMPANY, Plaintiff-Appellee,
v.
Theda v. GIESOW, Defendant-Appellant
32649_1.
Court of Appeals for the Second Circuit.
Jun 17, 1969.
412 F.2d 468
Samuel Gottlieb (Bernard Beitel, Gainsburg, Gottlieb, Levitan & Cole), New York City, for defendant-appellant., Walter C. Reid (Hartnett & Reid), New York City, for plaintiff-appellee.
Waterman, Smith, Feinberg.
Cited by 84 opinions  |  Published
J. JOSEPH SMITH, Circuit Judge:

This is an appeal from various orders entered in the United States District Court for the Eastern District of New York in an action brought by a surety for breach of a subordination agreement. The court entered partial summary judgment for the surety, and the defendant appeals. For the reasons set forth below, we dismiss the appeal.

I

In 1961, the plaintiff, Aetna Casualty & Surety Company (“Aetna”), issued performance and payment bonds on a construction project undertaken by one William J. Magee. In order to assure that the project would be a bondable risk, Magee obtained a loan in the amount of $25,000 from the defendant, Mrs. Theda Giesow. As a condition precedent to the issuance of any bonds, the plaintiff insisted that the defendant sign an agreement subordinating her rights against Magee to any losses the plaintiff might sustain in its capacity as surety. The agreement also provided that the defendant would not accept repayment of the Magee loan without written notice from the plaintiff approving repayment. Such notice would be sent when the plaintiff determined that it sustained no losses on the bonds involved here. In the event the defendant failed to comply with the provisions of the subordination agreement, it was agreed that the defendant would indemnify the plaintiff for “any and all liability, loss, costs, damages, attorneys’ fees and expenses of whatsoever kind or nature which the Surety may sustain or incur by reason of or in consequence of having executed said bond or bonds.”

On June 20, 1962, the defendant accepted repayment of the Magee loan without written notice from the plaintiff. Magee later defaulted on the .construction contract, and the plaintiff became liable on a “labor and materials payment bond.”[*470] The plaintiff paid out approximately $27,000 to subcontractors on this payment bond, and thereupon sued the defendant to recover this amount, plus interest and reasonable attorneys’ fees.

In opposing the plaintiff’s motion for summary judgment, the defendant said that she had never intended to subordinate her rights against Magee to any bond other than a performance bond, and strongly urged that the language of the subordination agreement was at least susceptible of such an interpretation. She also argued that the plaintiff had consented to repayment by waiving written notice. These arguments were rejected by Judge Bruchhausen, and partial summary judgment was entered for the plaintiff on the issue of liability.

Pre-trial conferences were then held before Chief Judge Zavatt, who entered a pre-trial order stating that there were still questions of fact as to damages on the payment bond, as well as the amount of counsel fees to be allowed plaintiff. The parties stipulated to the amount paid by the plaintiff to subcontractors on the payment bond, and they then proceeded to trial before Judge Abruzzo. During the course of trial Judge Abruzzo said, “I am not used to being pushed around by lawyers,” and he declared a mistrial. Then, strangely enough, Judge Abruzzo entered judgment for the plaintiff in the amount of $34,961.84, representing labor and material costs plus interest, despite strenuous protestations by the defendant that damages could not exceed the amount of the subordinated debt. She also argued quite insistently that the plaintiff did not pay the subcontractors until after the contractual period of limitations had run, and thus that she could not be liable for such payments. Judge Abruzzo did not apparently consider any of these contentions in fixing the amount of damages. He then ordered that the claim for reasonable counsel fees “is hereby severed,” and entered final judgment on the damages question. Although there is no mention of Rule 54(b), Fed.R.Civ.P., Judge Abruzzo did expressly determine that “there was no just reason for delay.”

II

By its very words Rule 54(b) is applicable only “[w]hen more than one claim for relief is presented,” and thus the partial adjudication of a single claim is not appealable, regardless of whether there is a Rule 54(b) certificate. McNellis v. Merchants National Bank & Trust Company of Syracuse, 385 F.2d 916 (2d Cir. 1967). Since the plaintiff would not be entitled to counsel fees if there was no breach of the subordination agreement, we believe that the issues of damages and counsel fees are so inexorably interconnected as to make this a single claim. Cf. Cott Beverage Corp. v. Canada Dry Ginger Ale, Inc., 243 F.2d 795 (2d Cir. 1957). In Rieser v. Baltimore & Ohio Railroad Co., 224 F.2d 198, 199 (2d Cir. 1955), cert. denied 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956), we said that the test of multiple claims was “whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced.” Under this test it seems quite clear that the claim for counsel fees cannot be enforced apart from the claim for breach of the subordination agreement, and to this extent we have only a single claim here. Cf. Schwartz v. Eaton, 264 F.2d 195 (2d Cir. 1959). There is also some question as to whether the judgment here can properly be said to be “final,” since reasonable counsel fees are a contractually specified element of damages and plainly the amount of those fees has not yet been determined. See United States v. Burnett, 262 F.2d 55 (9th Cir. 1958). Since we lack jurisdiction, we must dismiss this appeal.

Ill

Since this case will have to go back to the district court for computation of reasonable counsel fees, we think we should point out that Judge Bruchhausen and Chief Judge Zavatt both thought that there were “substantial” issues of fact concerning damages, and despite Judge Abruzzo’s somewhat choleric determination that all the underbrush should be[*471] cleared away with one swing of the scythe, we think that issues of fact remain on the damage question. There is at least a very real question as to whether the plaintiff made payments to subcontractors after the expiration of the contractual period of limitations. [1] There also appears to be some question as to whether Magee was financially able to pay his subcontractors and material men when he ceased work, since the plaintiff apparently bonded Magee on subsequent construction projects and presumably satisfied itself as to his financial solvency.

We also think that there may be triable issues of fact on the threshold questions raised by this case. We cannot perceive any reason why the plaintiff could not “waive” written notice, and indeed, the defendant points to certain interoffice memoranda which suggest that the plaintiff apparently knew and did not object to repayment of the Magee loan. [2] Even the question of whether the subordination agreement subordinates the defendant’s rights to claims arising out of the payment bond is not free from ambiguity. The relevant part of the subordination agreement recites that the plaintiff would “execute a bond for the performance of such contract, and such other bond or bonds the Contractor may be required to give in connection with or growing out of said contract.” While there is no question that the “labor and material payment bond” is a bond “growing out of said contract,” it may be that the phrase “such other bond or bonds” means such other performance bonds. Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper. Lemelson v. Ideal Toy Corp., 408 F.2d 860 (2d Cir. 1969).

The court may therefore wish to reconsider its summary judgment rulings prior to or simultaneously with its determination of the issue of reasonable counsel fees under the bond. For purposes of expediting any subsequent appeal, the parties may wish to submit that appeal on the briefs already filed, together with whatever additional memoranda they may think necessary. The proceeding presently before us, however, is dismissed because there is no appealable final judgment.

Appeal dismissed.

1

. The defendant insists that the plaintiff did not make payment to the various subcontractors and material men until fifteen and sixteen months after Magee stopped work on the construction project in question. By the terms of the payment bond, the plaintiff’s obligations as surety were limited to “one year following the date” on which the contractor ceased work.

2

. In a memorandum dated May 29, 1962, Charles W. Began of the Aetna Bond Department wrote as follows:

At the same time last summer Henry G-iesow [sie] lent Bill Magee $25,000 personally which Bill in turn advanced to the corporation for which he received a demand note. Bill intends to repay this $25,000 out of the corporate funds some time in June of this year.
With the profit accrued thus far this year, plus the additional sale of stock, minus the $25,000 to be repaid in June, the corporate net quick as of the end of June should amount to $45,000 to $50,-000. We will receive the accountant’s financial statement as of the end of June as soon as it is available.