DISSENTING MEMORANDUM
Donlon, Judge:Plaintiff has appeared by counsel and moved for an order vacating the order, dated April 24, 1962, and permitting plaintiff to submit a stipulation pro se. In support of this motion, counsel asks leave to be heard. While rule 6 of the court rules does not provide for oral argument save by leave of the court, the circumstances here would appear such as to warrant the granting of leave to counsel to present oral argument.
This plaintiff is the plaintiff in the instant protest, by permission of Congress. The rules of the court do not confer that right, nor may they deny it.
Whether partners-plaintiff should or should not, in the future, be able to appear pro se, pursuant to rule 9, this is a right which such plaintiffs have been accorded both here and in the courts of New York State. To change accepted practice now by decision of only two judges, and without granting requested leave for oral argument by counsel, might appear to be a somewhat arbitrary usurpation of the rule-making authority.
However, as stated in my opinion in S. Stern, Henry & Co. v. United States, 48 Cust. Ct. 430, Abstract 66718, that is not the main issue. There is no cause *169of action before us. There is nothing substantive for which any one can argue, either pro se or by counsel. The protest should be dismissed.
In Sucrest Corp. v. United States, 10 Cust. Ct. 89, C.D. 728, this division so held. In a carefully written opinion by Judge Ekwall, the third division said, as follows:
* * * The matter of proceedings on the entry of merchandise is provided fox-in section 505 of the Tariff Act of 1930, which reads in part as follows:
SEO. 505. PAYMENT OE DUTIES.
The consignee shall deposit with the collector, at the time of making entry, unless the merchandise is entered for warehouse or transportation, or under bond, the amount of duty estimated to be payable thereon. * * *
This statute does not say by whom the estimate is to be made, nor do we know of any statute that does say so. But it would seem, ex necessitate rei, that it must be the collector, and we regard it as settled law now that the collector shall make the estimate. [P. 91.]
On a finding that the Sucrest protest did not state a cause of action, in that it complained that the collector had refused an entry because the duty estimated by the entrant was not equal to the amount which the collector estimated, the protest was dismissed.
On appeal, this decision of the third division was affirmed. Id. v. Id., 31 C.C.P.A. (Customs) 220, C.A.D. 275. Our appeals court stated the rule, which is applicable here, in this succinct language:
It is clear from a consideration of the hei-einbefore referred to provisions of the Tariff Act of 1930 that the Congress contemplated that the collector should estimate the amount of duties due on imported merchandise and that the importer or consignee should deposit with the collector at the time of making entry for consumption the amount of such estimated duties as a condition precedent to his right to enter such merchandise for consumption and receive a permit of delivery therefor. [P. 232.]
■The protest here contends that the collector required the payment of estimated duties in excess of those estimated by plaintiff, as a condition of delivery of the goods. There has been neither appraisement nor liquidation.
The proper action here is an order dismissing the protest both because it does not state a cause of action and because it is premature. For this reason, I do not discuss the theories enunciated in the memorandum of the majority.