#### UNITED STATES V. CALOGERA.

(Circuit Court, S. D. New York.

December 22, 1910.)

Customs Duties (§ 99*) — Refundusg Duties Paid — Appeal.

An importer, having paid certain duties under protest, employed petitioners as attorneys to recover the same, under an agreement to pay ' them one-half of whatever was recovered. They appealed to the Board of General Appraisers, which held the goods to be duty free, whereupon the collector appealed to the Circuit Court, where the decision was affirmed. *Held,*that the Circuit Court's jurisdiction was appellate only, and, having been completely exercised by. affirmance, there was then no suit pending, nor money in the hands of any officer of the court sufficient to confer jurisdiction to grant the petition of the importer’s attorney? for an order directing the collector to pay over to them one-half of the 'funds in his hands, under their agreement with the importer.

[Ed. Note. — li’or other cases, see Customs Duties, Cent. Dig. § 229; Dec. Dig. § 99.*]

*910Application by the United States to review the decision of the Board of General Appraisers holding that certain olives imported into the United States by G. P. Calogera were not’subject to duty. Petition bj^ Brown & Gerry, attornej's for the importer, for an order directing the collector of the port to pay over to them one-half of the amount paid under protest by the importer as duties, under an agreement that the attorneys should have one-half of whatever was recovered as compensation for their services in resisting the collection of such duties.

Denied.

See, also, 175 Fedi. 578.

Henry A. Wise, U. S. Atty. .

Brown & Gerry, for Calogera.

*

For other cases sec same topic *&*§ numbisk in Dee. & Am. Digs. 1907 to date, *&*Itcp’r Indexes

WARD, Circuit Judge.

Goods imported by one Calogera were assessed for duties by the collector at the rate of 15 cents per gallon. The importer paid under protest, and appealed to the Board of General Appraisers, which reversed the decision of the collector and held the goods to be duty free. Thereupon the collector applied to the Circuit. Court of the United States for this district to review the decision of /the board, which court affirmed it. A reliquidation of the duties shows the sum of $5,136.35 to be due by the United States to’ Calogera. ’ • "

Brown & Gerry acted as Calo'gera’s attorneys throughout, under an agreement whereby they were to receive one-half of whatever was recovered. They now petition this court in the original proceeding for an order directing the collector to pay over to them one-half the sum in his hands by virtue of this agreement. But the' jurisdiction of the court in that matter was appellate only, and has been completely exercised. There is no suit now pending, and there never was any money judgment, nor any fund in the hands of the court, or of any officer of the court. The petition must be regarded as an original proceeding asking this court to pass upon the rights of Brown & Gerry to a lien upon Calogera’s funds, without his presence, and to summarily direct an administrative officer of the United States to pay over money in his hands to a third party. No authority is shown for such a proceeding.

The prayer of the petition is denied.