45 F.2d 404 | S.D.N.Y. | 1928
(after stating the facts as above).
The plaintiff steamship company, on October 5, 1925, brought to the port of New York one Antonio Angeles, an alien, who upon arrival at Ellis Island was examined before a Board of Special Inquiry, .excluded, and ordered deported upon the ground that he was unable to read. Thereafter a penalty of $1,000, with the addition thereto of $138 passage money, was imposed upon the plaintiff pursuant to the statute above quoted. These amounts were paid under protest, and obviously under duress, in view of the statutory provision requiring the withholding of clearance.
As to the right to sue, the decision of Judge A. N. Hand in Compagnie General Transatlantique v. United States of America (D. C. July 7, 1927) 21 F.(2d) 465, is authoritative and controlling. The right to recover therefore turns upon whether the statute authorized the penalty imposed.
The petition alleges that transportation was furnished to the alien from a foreign port to the port of New York only after he had exhibited a permit to re-enter the United States, lawfully and regularly issued to him
Defendant’s motion denied. Plaintiff’s motion granted.