Opinion · District Court, S.D. New York
United States ex rel. Kessler v. Mercur Corp.
United States ex rel. Kessler v. Mercur Corp., 13 F. Supp. 742 (District Court, S.D. New York 1935)
- Type
- Opinion
- Court
- District Court, S.D. New York
- Jurisdiction
- New York
- Date
- 1935-03-15
- Topic
- general
PATTERSON, District Judge. The informer’s statute (R.S. § 3490 [31 U.S.C.A. § 231]) incorporates section 5438 of the Revised Statutes as it stood when the Revised Statutes were adopted, not as section 5438 has later been amended (18 U.S.C.A. §0 80). Kendall v. United States, 12 Pet. 524, 9 L.Ed. 1181. An informer’s action will therefore He only in cases where the defendant has made false, fictitious, or fraudulent “claim upon or against” the government of the United States.
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- Cited by
- 7 opinions
UNITED STATES v. MERCUR CORPORATION, (S.D.N.Y. 1935)
13 F. Supp. 742
UNITED STATES ex rel. KESSLER v. MERCUR CORPORATION et al.fn*
United States District Court, S.D. New York.
March 15, 1935.
Complaint dismissed.
Clark, Carr Ellis, of New York City, for defendants.West Page 743
The lease here was a percentage one. It did not create a partnership or joint adventure. The moneys taken in by the lessee were its own property, not government funds. It follows that the alleged instances of padding of expenses and failure to report moneys received did not constitute the making of false claims against the government within the comprehension of section 3490. This, of course, is not to say that the United States has not remedies civil as well as criminal, if the allegations in the complaint are true.
The motion will be granted and the complaint dismissed as insufficient on its face.
- Judgment affirmed83 F.2d 178. ↩