Moscahlades Bros. v. United States , 43 Cust. Ct. 358 ( 1959 )

Donlon, Judge:

The merchandise of this suit is olives in brine, imported at Boston and there assessed with duty at 30 cents per gallon under paragraph 744 of the Tariff Act of 1930, as ripe olives. Plaintiff’s protest claims that these olives in brine are green, not ripe, and that they should be dutiable under paragraph 744 at 20 cents per gallon.

On trial in New York, plaintiff rested its case after adducing testimony of Mr. Adolphus Brook, vice president and managing director of plaintiff corporation, Moscahlades Bros., Inc. Mr. Brook testified that he is familiar with the olives of the import entry; that he examined a number of the barrels in which these olives were contained, and he found that they were Greek olives (Salona), exactly the same as and identical in all material respects to the (Salona) olives that were before the court in Moscahlades Bros., Inc. v. United States, 39 Cust. Ct. 127, C.D. 1917. Pie further said that he had testified in the Moscahlades litigation.

At defendant’s request, the case was transferred to Boston, for the testimony of the examining officer. Before the Boston trial, the parties submitted on a written stipulation that the merchandise “is similar in all material respects” to the Greek olives (Salona) before the court in Moscahlades Bros., Inc. v. United States, supra, the record of which has been incorporated in the record herein.

Accepting this stipulation as a statement of facts, on the testimony of record and on authority of the decision in Moscahlades Bros., Inc. v. United States, supra, we hold that the merchandise of this protest consists of olives in brine, green, dutiable at 20 cents per gallon under paragraph 744 of the Tariff Act of 1930.

The protest is sustained. Judgment will be entered accordingly.