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
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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.
In Law. Proceeding by the United States, on the relation of Ollie V. Kessler, and by Ollie V. Kessler, against the Mercur Corporation and another.

Complaint dismissed.
McLean, Ferris, Ely Fain, of New York City, for plaintiff.

Clark, Carr Ellis, of New York City, for defendants.West Page 743
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. § 80). Kendall v. United States, 12 Pet. 524,9 L.Ed. 1181. An informer's action will therefore lie only in cases where the defendant has made false, fictitious, or fraudulent "claim upon or against" the government of the United States. This means a claim for money or property "to which a right is asserted against the Government, based upon the Government's own liability to the claimant." United States v. Cohn,270 U.S. 339,46 S.Ct. 251,252,70 L.Ed. 616. The action may not be maintained where all that is alleged is that the defendant has made false statements as to his own property, as in an income tax return. United States ex rel. Knight v. Mellon (D.C.)4 F. Supp. 947, affirmed (C.C.A.)71 F.2d 1021; United States ex rel. Boyd v. McMurtry (D.C.)5 F. Supp. 515.

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.
  1. Judgment affirmed83 F.2d 178. ↩