opinion: PRODUCERS RELEASING CORPORATION DE CUBA v. PATHE INDUSTRIES, Inc.
  No. 35, Docket 21719.
  United States Court of Appeals Second Circuit.
  Argued Oct. 11, 1950.
  Decided Nov. 6, 1950.
  Budner & Budner, New York City (Sidney S. Bobbe, New York City, of counsel), for appellant.
  Robert L. Augenblick, New York City, for appellee.
  Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
  FRANK, Circuit Judge.
  1. Considering our opinion in connection with the dismissal of the former suit, 2 Cir., 176 F.2d 93 and the New York decisions interpreting § 23 of the New York Civil Practice Act, we think that the dismissal of the complaint in that suit was not for “neglect to prosecute”, and that therefore the present suit was timely brought within the meaning of § 23. In Gaines v. City of New York, 215 N.Y. 533, 539, 109 N.E. 594, 596, it was said: “The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.”
  In London v. Hessberg, 147 Misc. 719, 265 N.Y.S. 829, 832, affirmed without opinion 264 N.Y. 435, 191 N.E. 501, the fact that the defendant was not prejudiced by plaintiff’s delay was held to be an important factor.
  2. Defendant argues that, because it was not a party to the earlier suit, Section 23 does not apply. We do not agree. Where the parties to the second action are identical in interest with the parties to the first, Section 23 applies; thus a trustee in bankruptcy may be joined as co-plaintiff with the bankrupt in the second action, Van der Stegen v. Neuss, Hesslein & Co., 243 App.Div. 122, 276 N.Y.S. 624, affirmed 270 N.Y. 55, 200 N.E. 577; and see Gibbons v. City of New York, 196 Misc. 89, 66 N.Y.S.2d 34. Here plaintiff, in the first suit, could have substituted defendant for PRC.
  Streeter v. Graham & Norton Co., 263 N.Y. 39, 188 N.E. 150, is not apposite; there the court held § 23 inapplicable because, in the second suit, a new plaintiff, in part representing different interests, sought to assert new rights. But here the same plaintiff sues, on the same causes of action, a defendant which represents all the interests of the defendant in the first action. All the assets, rights and duties of P.RC have devolved on defendant: the fact that defendant represents other interests in addition to those derived from PRC cannot free it of the duties undertaken by PRC whose assets defendant now enjoys.
  We think we are not required to follow Breen v. State, 179 Misc. 42, 37 N.Y.S.2d 371, a decision by the New York Court of Claims, even assuming that that court has a sufficient status to make its decisions authoritative within the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. For the court in the Breen case did not consider the earlier conflicting decision of a higher court, Van der Stegen v. Neuss, Hesslein & Co., 243 App.Div. 122, 276 N.Y.S. 624, affirmed 270 N.Y. 55, 200 N.E. 577; and Breen seems also at odds with Gaines v. City of New York, 215 N.Y. 533, 539, 109 N.E. 594, 596, where the court (per Cardozo, J.) said: “The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts. When that has been done, a mistaken belief that the court has jurisdiction [essentially the situation in the Breen case] stands on the same plane as any other mistake of law.”
  Reversed.
  . See N. Y. Civil Practice Act, § 83; Trotter v. Lisman, 209 N.Y. 174, 102 N.E. 575; Atlantic Dredging Co. v. William Beard, 145 App.Div. 342, 130 N.Y.S. 4, affirmed 203 N.Y. 584, 585, 96 N.E. 415.
  . Cf. State of California v. Fred S. Renauld Co., 9 Cir., 179 F.2d 605.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.