Matthews v. Correa, 131 F.2d 597 (2d Cir. 1942)

No. 98.

Nov. 16, 1942.

Henry E. Coleman, of New York City, for appellant.

Bruno Schachner, of New York City, for appellee.

Before L. HAND, CLARK, and FRANK, Circuit Judges.

PER CURIAM.

The order appealed from provided that the United States Attorney should “return to the defendant * * * such of the papers mentioned and described in the notice of motion herein, as he, in his sole discretion, shall deem himself not entitled to retain.” “If the defendant shall deem herself entitled to any of the papers retained” she was “given the right to again move for the turning over of said papers.” The record does not disclose what, if any, of the papers seized the United States Attorney has “retained”; and, although the appellant’s brief declares that he has in fact “retained” certain papers which it mentioned, we cannot consider the statement, for not only is it not part of the record, but the contents of the papers so retained does not sufficiently appear.

The order is not appealable because it is interlocutory; the defendant should avail herself of the leave given and should move in the district court, stating in detail the character of the papers retained, and why she is entitled to their return.

Appeal dismissed.