Schedule I, 30 Stat. 179 [U. S. Comp. St. 1901, p. 1661], or paragraph 347, Schedule J, 30 Stat. 182 [U. S. Comp. St. 1901, p. 1664], of said act. We are of the opinion that the contention of the importers is not well founded. It would be an unreasonable straining of the doctrine relied upon to hold that metal thread goods in the piece are not ejusdem generis with the articles denominatively provided for in paragraph 179. They are of the same material and composition, are intended for the same ultimate use, and are not elsewhere specifically provided for. That the word "articles" is broad enough to cover piece goods is no longer open to question. See Junge v. Hedden, 146 U. S. 233, 13 Sup. Ct. 88, 36 L. Ed. 953, and Arthur v. Butterfield, 125 U. S. 70, 8 Sup. Ct. 714, 31 L. Ed. 643. Note, also, G. A. 4,734, T. D. 22,381. The protests are overruled, and the decision of the collector affirmed, in each case. Walden & Webster (Henry J. Webster, of counsel), for importers. Charles Duane Baker, Asst. U. S. Atty. TOWNSEND, Circuit Judge (orally). The merchandise in question consists of certain fabrics, assessed for duty under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 179, 30 Stat. 166 [U. S. Comp. St. 1901, p. 1644], for "articles made wholly or in chief value of * metal threads." The importers protested, claiming that the merchandise should have been classified as manufactures of metal, under paragraph 193 (30 Stat. 167 [U. S. Comp. St. 1901, p. 1645]) of said act. Decision affirmed, on the opinion of the Board of Appraisers. G. HIRSCH'S SONS v. UNITED STATES. (Circuit Court, S. D. New York. May 19, 1905.) No. 3,725. CUSTOMS DUTIES-CLASSIFICATION-STRUNG GELATIN SPANGLES. Gelatin spangles strung on cord, and used in making trimmings or ornaments for wearing apparel, are ejusdem generis with the articles enumerated in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], providing for "ornaments, trimmings and other articles" composed of gelatin spangles, and are dutiable under that provision, rather than under paragraph 450 (30 Stat. 193 [U. S. Comp. St. 1901, p. 1678]) relating to "manufactures of gelatin.” On Application for Review of Decisions of the Board of United States General Appraisers. The decisions in question affirmed the assessment of duty by the collector of customs at the port of New York. Note G. A. 5,818, T. D. 25,695, and Louis Metzger & Co. v. U. S. (C. C.) 141 Fed. 381. Comstock & Washburn (Albert H. Washburħ, of counsel), for importers. Charles Duane Baker, Asst. U. S. Atty. TOWNSEND, Circuit Judge. The merchandise in question consists of spangles made of gelatin, strung on cord, and used in making trimmings or ornaments for wearing apparel. They were assessed for duty under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], at 60 per cent. ad valorem, as "ornaments, trimmings, and other articles, not specially provided for in this act, composed wholly or in part of spangles made of gelatin." The importer has protested, claiming that they are dutiable, under the provisions of paragraph 450 of said act (30 Stat. 193 [U. S. Comp. St. 1901, p. 1678]), as manufactures of gelatin not specially provided for. * The testimony shows that the spangles as imported in their strung condition are adapted to be used, and are actually used, as ornaments and for trimmings. They are thus distinguished from the articles considered in Steinhardt v. U. S. (C. C.) 113 Fed. 996, where beads were merely temporarily strung upon a cotton thread. In these circumstances the spangles must be held to be ejusdem generis with the other articles specifically enumerated in paragraph 408. The decision of the Board of General Appraisers is affirmed. LOUIS METZGER & CO. v. UNITED STATES. (Circuit Court, S. D. New York. June 1, 1905.) 1. CUSTOMS DUTIES-CLASSIFICATION-SPANGLED HAT CROWNS-ARTICLES OF GELATIN. Spangled hat crowns are in a general way of the same character as the class of materials considered under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], for fabrics, wearing apparel, trimmings, etc., including "other articles composed wholly or in part" of gelatin spangles, and are dutiable under said provision for "articles," rather than under paragraph 450 (30 Stat. 193 [U. S. Comp. St. 1901, p. 1678]), as manufactures of gelatin. 2. SAME-ARTICLES COMPOSED OF GELATIN SPANGLES-MANUFACTURES OF GELATIN-SPECIFIC DESIGNATION. * Tariff Act July 24, 1897, c. 11, § 1, Schedule N. par. 408, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], relating to "articles * composed wholly or in part of * spangles * * made of gelatin," is more specific than paragraph 450 (30 Stat 193 [U. S. Comp. St. 1901, p. 1678]), relating to manufactures of gelatin. On application for Review of a Decision of the Board of United States General Appraisers. For decision below see G. A. 5,788, T. D. 25,578, which affirmed the assessment of duty by the collector of customs at the port of New York. Frederick W. Brooks, for importers. Charles Duane Baker, Asst. U. S. Atty. TOWNSEND, Circuit Judge. The merchandise in question differs from that considered and disposed of at this session of the court in Hirsch v. United States (C. C.) 141 Fed. 380, only in the fact that while the articles there under consideration were adapted to be used, and evidently were used, as ornaments and for trimmings, the merchandise herein consists, so far as this appeal is concerned, of what are known as "spangled crowns," which constitute crowns for hats. It is therefore argued that they are not ejusdem generis with "fabrics, laces, embroidery, wearing apparel, ornaments, trimmings," etc., under said paragraph 408. Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 189 U. S. Comp. St. 1901, p. 1673]. They are, however, in any event, "articles composed wholly or in part of * spangles made of gelatin, not specially provided for." These articles are in a general way of the same character as the class of materials considered under paragraph 408, and, as the designation is more specific than the general catch-all provision in paragraph 450 (30 Stat. 193 [U. S. Comp. St. 1901, p. 1678]) for manufactures of gelatin, the decision of the Board of General Appraisers should be affirmed. * * SILVERMAN v. PENNSYLVANIA R. CO. (Circuit Court, S. D. New York. November 11, 1905.) ATTORNEY AND CLIENT-SUBSTITUTION OF ATTORNEYS-CONDITIONS OF ALLOWANCE. A party has an absolute right to change his attorney at any time, and while the court may, in its discretion, compel him to pay for services rendered as a condition of substitution, it will not do so where the case was taken on a contract for a contingent fee which is of doubtful validity, but will order the substitution and leave the attorney to his remedy by suit. [Ed. Note. For cases in point, see vol. 5, Cent. Dig. Attorney and Client, §§ 113, 114. Compensation of attorney on premature termination of employment, see note to 69 C. C. A. 113.] On Motion by Plaintiff for an Order Substituting Attorneys. House, Grossman & Vorhaus (Leo R. Brilles, of counsel), opposed. HOLT, Circuit Judge. A party has an absolute right to change his attorney at any time. It is discretionary with the court whether it should compel him to pay for services already rendered, especially in a case taken upon a contingent fee, or whether a substitution should be ordered, leaving the attorney to sue for his fee. Du Bois v. Mayor (C. C. A.) 134 Fed. 570. In this case the attorney made a written contract with the plaintiff to conduct this suit upon a contingent fee; "all disbursements to be advanced by" the attorney. In my opinion, by the law of New York, this contract was void for champerty. Coughlin v. N. Y., C. & H. R. R. Co., 71 N. Y. 443, 27 Am. Rep. 75; Stedwell v. Hartmann, 74 App. Div. 126, 77 N. Y. Supp. 498. And see Matter of Fitzsimons, 174 N. Y. 23, 66 N. E. 554; Jeffries v. Mutual Life Ins. Co., 110 U. S. 305, 4 Sup. Ct. 8, 28 L. Ed. 156. The contract was made in Philadelphia, and it may be that it was valid by the law of Pennsylvania. But in my opinion the validity of the contract is so doubtful that this court should not order any money to be paid as a condition of substitution, but should leave the attorney to his suit. The commissioner's report is not confirmed, and an order of substitution is granted. MORIMURA BROS. v. UNITED STATES. CHINA & JAPAN TRADING CO. v. SAME. (Circuit Court, S. D. New York. December 13, 1904.) Nos. 3,547, 3,548. CUSTOMS DUTIES-CLASSIFICATION-STUFFED BIRDS-TOYS. In regard to stuffed skins of domestic chicks and ducklings, used by confectioners and dealers in Easter goods and novelties, held, that they are not "toys" within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 418, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674], but "birds, stuffed," under paragraph 493, § 2, Free List, 30 Stat. 196 [U. S. Comp. St. 1901, p. 1681]. On Application for Review of a Decision of the Board of United States General Appraisers. For decision under review, see G. A. 5,655, T. D. 25,234, which affirmed the assessment of duty by the collector of customs at the port of New York on importations by Morimura Bros., and the China & Japan Trading Company. The articles comprised in these importations consisted of the stuffed skins of chicks and ducklings, the young of domestic fowl, which had been killed at the age of about two weeks; the skins being stuffed with cotton and wired to preserve their shape. The board found that these articles were "sold to confectioners and to people who trade in Easter goods and novelties, to be used in trimming candy boxes and branches of trees," and held that they had been properly classified as "toys" under paragraph 418, Schedule N, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674]. The contention of the importers that they should have been classified free of duty as "birds, stuffed, not suitable for millinery ornaments," under paragraph 493, § 2, Free List, 30 Stat. 196 [U. S. Comp. St. 1901, p. 1681], was overruled on the theory that "Congress only intended that there should be admitted free of duty, under said paragraph 493, birds which are prepared by a taxidermist either as specimens of natural history or for ornamental purposes, other than such as are suitable for millinery ornaments." William B. Coughtry, for importers. Charles D. Baker, Asst. U. S. Atty. PLATT, District Judge. The decision of the Board of General Appraisers is reversed. THE KENTONIA. (District Court, D. New Jersey. October 17, 1905.) COLLISION-WRECKING OF MOORED YACHT IN STORM-INEVITABLE ACCIDENT. In Admiralty. Suit for injury to vessel. James F. Minturn, for respondent. LANNING, District Judge. This cause comes before the court upon a libel and cross-libel. It appears that on September 16, 1903, the libelant's yacht Naomi was moored to a spile on the mooring grounds of the Pavonia Yacht Club in New York Bay, and that the Kentonia was anchored on the same grounds a short distance from the Naomi. Toward noon of September 16th there arose a storm so fierce that about a dozen vessels anchored and moored in the vicinity of the Naomi and the Kentonia were driven to and wrecked on the shore. Seven vessels belonging to members of the Pavonia Yacht Club, including the Naomi and Kentonia, were among the number. The libelant insists that the Kentonia dragged her anchors and fouled the Naomi, causing the Naomi to break from her mooring and to drift, with the Kentonia pounding her, until the Naomi struck the shore and sunk. The evidence does not satisfy me that the Kentonia struck the Naomi while the Naomi was moored to her spile. No witness saw the vessels in contact with each other until after the Naomi had drifted some distance from the place where she had been moored. As above stated, other vessels in the same storm broke from their moorings. It is as reasonable to infer that the Naomi was forced from her mooring by the severity of the storm as by the pounding of the Kentonia. Furthermore, the evidence shows quite satisfactorily that reasonable provision was made to secure the Kentonia at the place where she was regularly anchored. Just before the storm struck the Kentonia, it appears that an additional 250 pound anchor was thrown out from her. The testimony shows that the two anchors which she then had were amply sufficient to hold her in any ordinary storm, and even in most extraordinary storms. I can find no rule of admiralty law that would justify me in holding the Kentonia liable for damage to the Naomi in the circumstances of this case. The witnesses on both sides agree that the storm was cyclonic in its nature, and several of them declare they had never known so se vere a one. My conclusion is that the damages sustained by the Naomi and the Kentonia should be regarded as the result of inevitable accident, and that both the libel and the cross-libel should be dismissed. |