UNITED STATES v. GOLDBERG et al. (two cases).

Nos. 230, 231.Circuit Court of Appeals, Second Circuit.
April 7, 1930.

Appeal from the District Court of the United States for the Southern District of New York.

Actions by the United States against Jacob Goldberg and another, principals, and the New Amsterdam Casualty Company, surety, and against Chana Goldberg, as principal, and the New Amsterdam Casualty Company, surety. From adverse judgments, plaintiff appeals.

Reversed.

Some time in November 1922, three aliens, Jacob, Sara, and Chana Goldberg, arrived at the port of New York and were held for examination by the Board of Special Inquiry, which later decided to exclude each of them. On appeal to the Secretary of Labor, this decision was affirmed. Thereupon the aliens requested the Secretary of Labor to admit them to the United States temporarily for a period of three months, and public charge and departure bonds executed on January 5, 1923, with the defendant New Amsterdam Casualty Company as surety, were, in compliance with the Immigration Act of 1917 (8 USCA § 158) submitted to the Secretary. The bonds were approved, and the aliens permitted to enter upon conditions, among others, as set forth in the bonds, that they should depart from the United States on or before April 5, 1923, without any expense to the United States, and should prior thereto give at least five days’ notice to the Commissioner of Immigration, Ellis Island, N.Y., of any such departure, together with the name of the vessel on which departure was to be made. By express terms, the principal sum of the bonds was payable in case of breach “as liquidated damages and not as a penalty.” Later the Secretary of Labor extended the time for departure to April 5, 1924, with

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the conditions of the bonds otherwise unaffected. The defendant surety assented to such extension. On April 5, 1924, the aliens went to Ellis Island, where they found that no ship was presently available for their departure, and, so the evidence tended to show and the jury found, requested and received permission from the Commissioner there to, and they did, go home, upon his being assured in their behalf that they would return whenever he gave them twenty-four hours’ notice. The surety company had no notice of this request of the aliens or of the Commissioner’s assent to it. The aliens remained in this country beyond the time fixed in the bonds for their departure but the granting of their request by the Commissioner was claimed by the defendant surety to have released it from liability.

Charles H. Tuttle, U.S. Atty., of New York City (Leon E. Spencer, Asst. U.S. Atty., of New York City, of counsel), for the United States.

Albert J. Hiers, of New York City (Milton Seymour Cohn and George W. Israel, both of New York City, of counsel), for defendant-appellee.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

Under the conditions of these bonds, the aliens undertook to depart from the United States on or before a day certain without expense to the government and, indeed, without any action by the government at all. They were not to be deported. They were to go. One of the duties of the surety was to see that they went. The Commissioner had no official duty to them with respect to their going, at least until the time limit had expired, except to receive the five days’ notice. To be sure they had failed before April 5, 1924, to give him five days’ notice of the date of sailing and name of the vessel by which they were to depart but we have no occasion to consider what authority he may have had to cause them to be arrested and deported on that account, for he then took no such action. Moreover, there is nothing to indicate that he interfered with them in any way. He merely permitted them to do what they pleased upon their assurance that they would return when he gave them twenty-four hours’ notice to do so. Their voluntary departure according to the conditions of the bonds was not delayed or prevented by anything the Commissioner may have told them. The very basis of their request to him for permission to leave Ellis Island that day was the fact that there was no vessel on which they could then depart. The selection of Ellis Island as the place for departure was their own. It does not appear that they had chosen any ship. They waited until the last day, and then could not have left the country whether the Commissioner granted their request or not. The government was under no obligation to provide a ship for them there or anywhere else. Nor did the Commissioner undertake to do more than to notify them twenty-four hours before he might require their reappearance at Ellis Island; not, of course, for departure in accordance with the conditions of the bonds, for that was already impossible, but presumably for deportation should they fail to depart voluntarily.

As we see it, this appeal does not raise the question of the authority of the Commissioner to waive the conditions of the bonds or to extend the time for the aliens to remain lawfully in this country, since what he did would have fallen short of such waiver or extension had his authority to waive or extend been undoubted. His non-interference with these aliens, which left them free for the time being to come and go as they pleased, ought not to be tortured into more than just non-interference.

It is also urged that the bonds were given for indemnity only, and that the amount of recovery must be limited to the damages the government can show it has suffered as a result of the breach. In the First circuit, this precise question was recently considered and rightly decided, so we think, adversely to the contention of the appellee in Matta v. Tillinghast (C.C.A.)33 F.2d 64.

Judgments reversed.

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