In re Zeimer

66 F. 740, 1895 U.S. App. LEXIS 3341

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: February 18, 1895
• Status: Published

Opinion

COXE, District Judge.

The question is whether the imported artificial leaves should be classified as “artificial flowers or parts thereof,” or as “manufactures of cotton” and paper. The board found that these leaves were made of colored cotton cloth, metal and wax, cotton being the component material of chief value; that they are suitable for millinery ornaments and are used for branching and making mountings and that they are commercially known, imported, bought and sold as parts of artificial flowers. This finding was upon ex parte testimony, the importers, though invited to do so, gave no testimony before the board. In this court a mass of testimony has been taken which establishes the fact that artificial leaves are imported for three distinct lines of trade and are used by confectioners, decorators and milliners. Only in the millinery trade are leaves known as artificial flowers or parts thereof and not uniformly in that trade. By decorators and confectioners they are known only as leaves. Of course these leaves are not, in fact, flowers, or parts of flowers. Not being artificial flowers in fact, the evidence that they were known as such commercially must be “definite, uniform and general.” It is not enough that they were so known in a single trade. Berbecker v. Robertson, 152 U. S. 373, 14 Sup. Ct. 590; Maddock v. Magone, 152 U. S. 368, 14 Sup. Ct. 588; Cohn v. Erhardt, 44 Fed. 747; Dodge v. Hedden, 42 Fed. 446. As the testimony here is confined to a single trade and is not entirely definite as to that trade it is obvious that no commercial usage has been established within the rule of the authorities cited. The decision of the board is reversed.