United States ex rel. Kessler v. Mercur Corporation
| Decision Date | 15 March 1935 |
| Citation | 13 F. Supp. 742 |
| Parties | UNITED STATES ex rel. KESSLER v. MERCUR CORPORATION et al. |
| Court | U.S. District Court — Southern District of New York |
McLean, Ferris, Ely & Fain, of New York City, for plaintiff.
Clark, Carr & Ellis, of New York City, for defendants.
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.
* Judgment affirmed 83 F.(2d) 178.
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United States v. Hess
...v. Mellon, D.C., 4 F. Supp. 947, affirmed, United States ex rel. Knight v. Mellon, 3 Cir., 71 F.2d 1021; United States ex rel. Kessler v. Mercur Corporation, D.C., 13 F.Supp. 742, affirmed, 2 Cir., 83 F.2d 178; United States ex rel. v. Salant & Salant, Inc., D.C., 41 F.Supp. 196, decision b......
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United States v. Hess, 7841.
...v. Mellon, D.C., 4 F.Supp. 947, affirmed sub nomine U. S. ex rel. Knight v. Mellon, 3 Cir., 71 F.2d 1021; United States ex rel. Kessler v. Mercur Corp., D.C., 13 F.Supp. 742, 743, affirmed, 2 Cir., 83 F.2d 9 Volume IV, p. 355 et seq. 10 Ferrett v. Atwill, 8 Fed.Cas. page 1161, No. 4,747. Cf......
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United States v. Tieger
...the majority of this court feel that there is apt, if not controlling, dicta in the opinion. In United States ex rel. Kessler v. Mercur Corp., D.C.S.D.N.Y.1935, 13 F. Supp. 742, 743, the Court stated, "The action may not be maintained where all that is alleged is that the defendant has made......
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United States v. Goldsmith, 181.
... ... of any department or agency of the United States or of any corporation in which the United States of America is a stockholder, shall be fined not ... Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616; United States ex rel. Starr v. Mulligan, 2 Cir., 59 F.2d 200. But by the amendment just ... Finally, United States ex rel. Kessler v. Mercur Corp., 2 Cir., 83 F.2d 178, affirming D.C.S.D.N.Y., 13 F.Supp ... ...