D. S. Hesse & Bro. v. United States

U.S. Circuit Court for the District of Southern New York

D. S. Hesse & Bro. v. United States

154 F. 171, 1907 U.S. App. LEXIS 5164

CourtU.S. Circuit Court for the District of Southern New York

DecidedFebruary 28, 1907

DocketNo. 4,210

StatusPublished

This text of 154 F. 171 (D. S. Hesse & Bro. v. United States) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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D. S. Hesse & Bro. v. United States, 154 F. 171, 1907 U.S. App. LEXIS 5164 (circtsdny 1907).

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Opinion

HOUGH, District Judge.

The subjects of this appeal' are collars and cuffs designed for feminine wearing apparel, composed of braids sewn together by hand and ornamented with threads and other material. They have been assessed as “cotton lace articles,” under paragraph 339 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, ,Schedule J, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662j). They were invoiced as “cotton braid ornaments,” and the importers assert should have been classified as “manufactures of cotton,” under paragraph 322.

The testimony which has prevailed before the Board of Appraisers is that these goods are known as “'Renaissance collars,” and that they have a “lacy” effect. It is not pretended that they are of lace, nor that they are imitation lace. The distinction between which terms seems to be that real lace must be made by hand, and imitation lace upon machines. I conclude from the evidence introduced in this court that they are not “Renaissance collars,” and that they are usually dealt in by retail in this country as “lace collars and cuffs”; but they are not so known among importers and foreign makers. If any importance is to be given to the testimony that the wearing apparel under consideration has a “lacy” effect, it must be based upon the words “in imitation of lace,” found in paragraph 339; but, as was remarked in G. A. 6,462 (T. D. 27,644), “there is no article known in any trade [172]*172as an imitation of lace. This is descriptive purely of a condition of an article.” It seems to me that the effect upon the uneducated eye of something which is neither real nor imitation lace is far too unsubstantial to base a customs ruling upon. I think the question in Kleeberg v. United States (C. C.) 72 Fed. 252, 254, “How can a lace article be made without lace ?” is unanswerable. These articles are not lace of any kind. To the eye of a person having any acquaintance with lace as defined by the dictionaries and recognized in Sidenberg v. Robertson (C. C.) 41 Fed. 763, these collars and cuffs do not in any way resemble lace.

The name given to them by retailers puffing their wares, and by the women who buy and use them, is not controlling; and therefore, because (1). the evidence clearly shows that the articles are not lace of any kind, and (2) the preponderance of testimony is that they are known as “braid collars” among importers, I think the decision of the General Appraisers must be reversed, and the protest sustained.

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HOUGH, District Judge.

The subjects of this appeal' are collars and cuffs designed for feminine wearing apparel, composed of braids sewn together by hand and ornamented with threads and other material. They have been assessed as “cotton lace articles,” under paragraph 339 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, ,Schedule J, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662j). They were invoiced as “cotton braid ornaments,” and the importers assert should have been classified as “manufactures of cotton,” under paragraph 322.

The testimony which has prevailed before the Board of Appraisers is that these goods are known as “'Renaissance collars,” and that they have a “lacy” effect. It is not pretended that they are of lace, nor that they are imitation lace. The distinction between which terms seems to be that real lace must be made by hand, and imitation lace upon machines. I conclude from the evidence introduced in this court that they are not “Renaissance collars,” and that they are usually dealt in by retail in this country as “lace collars and cuffs”; but they are not so known among importers and foreign makers. If any importance is to be given to the testimony that the wearing apparel under consideration has a “lacy” effect, it must be based upon the words “in imitation of lace,” found in paragraph 339; but, as was remarked in G. A. 6,462 (T. D. 27,644), “there is no article known in any trade [172]*172as an imitation of lace. This is descriptive purely of a condition of an article.” It seems to me that the effect upon the uneducated eye of something which is neither real nor imitation lace is far too unsubstantial to base a customs ruling upon. I think the question in Kleeberg v. United States (C. C.) 72 Fed. 252, 254, “How can a lace article be made without lace ?” is unanswerable. These articles are not lace of any kind. To the eye of a person having any acquaintance with lace as defined by the dictionaries and recognized in Sidenberg v. Robertson (C. C.) 41 Fed. 763, these collars and cuffs do not in any way resemble lace.

The name given to them by retailers puffing their wares, and by the women who buy and use them, is not controlling; and therefore, because (1). the evidence clearly shows that the articles are not lace of any kind, and (2) the preponderance of testimony is that they are known as “braid collars” among importers, I think the decision of the General Appraisers must be reversed, and the protest sustained.

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