In re Marine Harbor Properties, Inc.

My colleagues base their decision, requiring dismissal of the petition, on Section 146(4) as they consider it to have been interpreted in the earlier decision of this court in Brooklyn Trust Co. v. Rembaugh, 2 Cir., 110 F.2d 838. That decision has been severely criticized. See 18 N.Y.U.L. Q.Rev. (1941) 399, 418; cf. 412-443.

I am wholly in accord with the general policy of adherence to rulings in earlier decisions. But there are well recognized exceptions to that policy, and I think that the instant case comes squarely within those exceptions. Undeniably, in order to achieve impartial…