Smith v. Farley

• Decision Date: 23 April 1936
• Citation: 38 F. Supp. 1012
• Parties: SMITH v. FARLEY, Postmaster General, et al.
• Court: U.S. District Court — Southern District of New York

38 F. Supp. 1012

SMITH v. FARLEY, Postmaster General, et al.

District Court, S. D. New York.

April 23, 1936.

K. C. Bates, of New York City, for plaintiff.

Lamar Hardy, U. S. Atty., of New York City (Edward J. Ennis and Helen E. Cottrell, both of New York City, of counsel), for defendants.

HULBERT, District Judge.

The defendants appearing specially moved to dismiss the bill of complaint, the Postmaster General upon the ground that the venue was improper, and the Postmaster at New York, in the event that such objection is sustained for the absence of an indispensable party.

All of the parties reside, and the defendants were served with the subpœnas, in the City of New York, within the jurisdiction of this court.

The complaint alleges that the plaintiff, under the trade name of "Vitalized Water Filter Company", is engaged in the manufacture and sale of devices termed "Vitilors" which cause water passing through to become collodially activated, and on the process therefor, plaintiff holds United States Letters Patent, and Canadian and other foreign patents. Water, when thus treated has known and established "medical and thereputic" effect and value.

On July 6, 1932, the then Postmaster General of the United States pursuant to Section 259 of Title 39 U.S.C.A., and after a hearing in accordance therewith, issued a fraud order against the plaintiff, and this action is brought to enjoin the enforcement thereof.

The plaintiff contends that the defendant Goldman is personally responsible for continuing to deprive the plaintiff of her rightful use of the United States mails and that the cause of action arose in this district. She relies upon Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570, and asserts that the Postmaster General is not a necessary party.

Philadelphia Co. v. Stimson, supra, was an action to restrain the Secretary of War from instituting criminal proceedings against a riparian owner who claimed his property lines had been invaded in fixing harbor lines, and is authority for the maintenance of an action against the Secretary of War rather than his subordinates and not a suit against the United States.

In the case at bar, while the present Postmaster General was not in office when the order sought to be enjoined was issued, he assumed and makes said order his official act by directing its enforcement and the Postmaster at New York is his subordinate in carrying it into effect.

While it has been held in Rood v. Goodman, 5 Cir., 83 F.2d 28, that the Postmaster General is not an indispensable party to a suit to enjoin the Postmaster from enforcing a fraud order, I consider myself bound by the decision in this district in the case of Hardy v. Goldman, D.C., 38 F.Supp. 1011, to the contrary.

In Wheeler v. Farley, D.C., S.D.Cal., 7 F.Supp. 433, it was held that the official residence of the Postmaster General is the District of Columbia.

In Butterworth v. Hill, 114 U.S. 128, 5 S.Ct. 796, 798, 29 L.Ed. 119, a bill in equity was filed in the Circuit Court of the United States for the District of Vermont against the Commissioner of Patents who indorsed an acceptance of service upon the writ, which, however, was made upon him in Washington, D. C., and thereupon addressed a letter to the solicitor for the complainant stating that he would not appear in the defense thereof. Upon appeal from the decree entered by default for the relief prayed for in the bill of complaint, the court said: "It does not appear that he was an inhabitant of the district of Vermont. * * * Unless, therefore, the acceptance of service as indorsed on the writ is to be treated as a voluntary appearance by the commissioner in the court in Vermont,...