Opinion
No. 86.
December 5, 1938.
Appeal from the District Court of the United States for the Southern District of New York.
Suit by Jewel Productions, Inc., against Henry Morgenthau, Jr., individually and as Secretary of the Treasury of the United States and Harry M. Durning, individually and as Collector of Customs of the Port of New York, for an injunction. From a decree dismissing the bill, the complainant appeals.
Reversed and dismissed.
Henry Pearlman, of New York City, for appellant.
Lamar Hardy, U.S. Atty., of New York City (William L. Lynch, Asst. U.S. Atty., of New York City, of counsel), for appellee Durning.
Before MANTON, SWAN, and CHASE, Circuit Judges.
The Secretary of the Treasury has not been made a party in this suit, either individually or in his official capacity, for no service has been effected. No suit will lie against the Collector alone. The Collector is a subordinate official of the Treasury Department and the Secretary of the Treasury is an indispensable party defendant. The bill was dismissed on the merits after denial of a motion for a temporary injunction. The decree is reversed with directions to dismiss the bill for lack of the necessary party defendant. Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411; Gnerich v. Rutter, 265 U.S. 388, 44 S.Ct. 532, 68 L.Ed. 1068; National Conference, etc., Inc., v. Goldman, 2 Cir., 85 F.2d 66; Transcontinental Western Air, Inc., v. Farley, 2 Cir., 71 F.2d 288; Alcohol Warehouse Corp. v. Canfield, 2 Cir., 11 F.2d 214.
Decree reversed with directions to dismiss the bill.