Robertson v. Perkins

• Decision Date: 28 January 1889
• Citation: 129 U.S. 233,9 S.Ct. 279,32 L.Ed. 686
• Parties: ROBERTSON, Collector, v. PERKINS et al. 1
• Court: U.S. Supreme Court

9 S.Ct. 279

129 U.S. 233

32 L.Ed. 686

ROBERTSON, Collector, v. PERKINS et al.¹

January 28, 1889.

Sol. Gen. Jenks, for plaintiff in error.

J. Langdon Ward, for defendants in error.

BLATCHFORD, J.

This is an action originally brought in the superior court of the city of New York, and removed by certiorari, by the defendant, into the circuit court of the United States for the Southern district of New York. It was brought by Charles L. Perkins against William H. Robertson, collector of the port of New York, to recover $1,460 as duties illegally exacted on an importation of Bessemer steel rail crop-ends, from England, in August, 1884. The defendant exacted duties on the articles at the rate of 45 per centum ad valorem, amounting to $2,628. The plaintiff claimed that the lawful rate of duty was only 20 per centum ad valorem, or $1,168. The complaint contained the allegation that the plaintiff 'duly made and filed due and timely protest in writing against the said erroneous and illegal assessment and exaction of the said duty;' that the plaintiff was compelled to pay the $1,460 in order to obtain possession of the merchandise; that he duly appealed to the secretary of the treasury from the decision of the defendant ascertaining and liquidating the duties; and that 90 days had not elapsed, at the commencement of the suit, since the decision of the secretary of the treasury on such appeal. The answer of the defendant did not deny the allegations of the complaint as to protest and appeal, and the decision of the secretary of the treasury. The jury found a verdict for the plaintiff. The parties consented in open court that the amount of the verdict might be adjusted at the custom-house, under the direction of the court. The amount was adjusted as of the date of the verdict, and for that amount, with interest and costs,—in all, $1,742.23,—judgment was rendered for the plaintiff. To review that judgment the defendant has brought a writ of error.

At the close of the plaintiff's evidence the counsel for the defendant moved the court to direct a verdict for the defendant on the grounds, among others, (1) that the protest which was put in evidence by the plaintiff was served and filed before liquidation, and was therefore premature; (2) that no proof was offered or given that there was any appeal to the secretary of the treasury, or any decision on such appeal, and no proof of the date of such decision, to show that the suit was brought in time. The motion was denied, and the defendant excepted to the ruling. Under section 914 of the Revised Statutes of the United States the practice, pleadings, and forms and modes of proceeding in this case, in regard to the complaint and the answer, were required to conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state of New York. By section 481 of the New York Code of Civil Procedure it is required that the complaint shall contain 'a plain and concise statement of the facts constituting each cause of action.' Section 500 requires that the answer shall contain 'a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.' By section 522, 'each material allegation of the complaint, not controverted by the answer,' 'must, for the purposes of the action, be taken as true.' The allegation of the complaint in this case is that the plaintiff 'duly made and filed due and timely protest in writing,' and 'duly appealed to the secretary of the treasury,' and 'that ninety days have not elapsed since the decision of the secretary of the treasury on the aforesaid appeal.' As none of these allegations were denied in the manner required by section 500 of the Code, they were, by section 522, to be taken as true, and no issue was joined upon any one of them. This is the ruling in regard to these provisions by the court of appeals of the state of New York. In Lorillard v. Clyde, 86 N. Y. 384, the complaint alleged that, in pursuance of a certain agreement, a corporation 'was duly organized under the laws of this state.' It was contended, on a demurrer to the complaint, that the agreement was illegal, because it provided that the parties thereto, consisting of five persons only, should form a corporation, whereas the statute contemplated that at least seven persons should unite in order to form a corporation. But the court held that the allegation that a corporation was 'duly organized under the laws of this state,' pursuant to the agreement, imported that the requisite number of persons united for that purpose; that it must be assumed that the corporation was regularly organized; and that it was unnecessary for the plaintiff to show in his complaint the precise steps taken to accomplish that result. The word 'duly' means 'in a proper way, or regularly, or according to law.' See, also, Tuttle v. People, 36 N. Y. 431, 436, and cases there cited; Fryatt v. Lindo, 3 Edw Ch. 239; People v. Walker, 23 Barb. 304; People v. Mayor, 28 Barb. 240; Burns v....