Lazard v. Magone

40 F. 662, 1889 U.S. App. LEXIS 2567

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 13, 1889
• Status: Published

Opinion

Lacojibe,' J.,

(orally.') I shall dispose of this case without sending it to the jury. As to the question of the classification of this importation by assimilation under the proviso at the close of section 2499, which reads: “Provided, that non-enumerated articles, similar in material and quality and texture, and the use to which they may be applied, to articles on the free-list, and in the manufacture of which no dutiable materials are used, shall be free,” — it is to be observed, in the first place, that similarity in all four of these respects is required. Undoubtedly, the article is similar in material, and apparently in texture, to the albu-. men of commerce which is imported here, and which is enumerated on ■ the free-list; but there is no evidence as to the use to which the albu--men so imported is applied, and, therefore, there is nothing from which to deduce a similarity in use, as between that article and this dried yolk. As to tiie claim that it is similar to eggs, -which also are on the free-list, while there is proof of similarity of material, and perhaps of use, the texture seems to be entirely different. As to the claim made in the protest that this importation was an article not manufactured, the failure of the plaintiffs to offer any proof as to how it was made removes that question from the case. The collector'has classified it as a manufactured article, and the presumption is that his decision was correct. There is no evi- ■ dence to the contrary, and it cannot, therefore, be classified as unman-ufactured. Verdict directed for defendant.