Opinion
No. 42130.
February 4, 1935.
Laurence Arnold Tanzer, of New York City (John W. Townsend, of Washington, D.C., of counsel), for plaintiff.
James A. Cosgrove, of Washington, D.C., for defendant.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
The defendant has filed a motion to dismiss the plaintiff's petition based upon section 260 of title 28 of the United States Code (28 USCA § 260), reading as follows: "No person shall file or prosecute in the Court of Claims, or in the Supreme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or immediately, under the authority of the United States."
It is admitted by plaintiff that at the time the petition was filed in the instant case it had pending in the United States District Court for the District of New Jersey a suit against Edward E. Gnichtel, former collector of internal revenue, based upon the same claim as the one upon which suit is brought in the instant case, and at the time when the cause of action arose the said Gnichtel was in respect thereto acting under the authority of the United States.
Applying the statute to these facts, we think it clear that the plaintiff was not permitted even to file its claim in this court and that the motion to dismiss its petition and action should be sustained. Cf. Corona Coal Co. v. United States, 263 U.S. 537, 44 S. Ct. 156, 68 L. Ed. 431.