This action is brought against the New York Times Company to recover a penalty under the provisions of section 4965, Rev. St., amended by the act of 1895 (2 Supp. Rev. St. p. 437), for infringement of a copyrighted photograph. The plaintiff seeks to recover, pursuant to that section, the sum of’ one dollar for a number of copies-of the New York Times purchased by him containing the alleged infringing photograph. The copies of the paper produced upon the trial, and therefore the sole evi*528dence upon which the judgment rests, were not seized for purposes of forfeiture and condemnation. The case of Falk v. Publishing Co. (C. C. A.) 107 Fed. 126, seems conclusive upon the point at issue. The circuit court of appeals there distinctly held that, unless there had been a legal forfeiture, the right to sue for the forfeited penalty has not accrued. No proceedings have been taken against the defendant for forfeiture, and no seizure by condemnation or other legal proceedings has been made. Therefore, under the doctrine of the case cited, no papers have been “found in the possession” of the defendant within the meaning of the statute. No cause of action, therefore, exists against the defendant to recover the statutory penalty. The motion for a new trial is granted.