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PAPALIOLIOS v. DURNING, Collector of Customs.

No. 275, Docket 21004.

Circuit Court of Appeals, Second Circuit.

May 4, 1948.

Kirlin, Campbell, Hickox & Keating, of New York City, (D. M. Tibbetts, of New York City, of counsel), for plaintiff-appellant.

John F. X. McGohey, U. S. Atty., of New York City, (Arthur C. Power, of New York City, of counsel), for defendant-appellee.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

*738PER CURIAM.

This is an appeal from an order denying the plaintiff’s motion for a temporary injunction in a declaratory judgment action brought by the master of the steamship Loida against the collector of customs of the Port of New York. The question in controversy is whether 8 U.S.C.A. § 167 authorizes the collector to deny clearance to said vessel unless payment shall be made of a fine administratively imposed against the agents of the vessel on account of failure in 1941, when the vessel was previously here to detain on board three alien seamen, clearance on that occasion having been obtained by the deposit by the agents prior to the determination of the fine, of a surety bond approved by the collector on which bond suit is now pending undetermined. Without deciding this question the district court denied a temporary injunction on the ground that no irreparable injury requiring injunctive relief was apparent, since the plaintiff can obtain clearance by paying the fine under protest and can then recover it by suit, if the fine was illegally imposed. We see no answer to this reasoning. Accordingly the order is affirmed.

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