154 F. 740 | U.S. Circuit Court for the District of Southern New York | 1907
It seems unnecessary to pass upon the question whether defendant shall be allowed to plead the tender as a defense; presumably the money offered was not accepted because of some misapprehension as to the decision of the Circuit Court of Appeals. That tribunal held that the merits of the controversy should be passed upon by the Board of General Appraisers, to whom, upon payment of the duty assessed, the collector would transmit the invoice and other documents as the customs administrative law provides..
Under the authorities, protest being filed within the 10 days, mere delay in payment does not deprive the board of the power to pass upon the question of proper classification. The defendant,' therefore, may take an order staying the trial of this action until after the Board of General Appraisers .shall have passed upon the question as to classification for duty. The order may contain a proviso to the effect that if defendant .shall fail to tender the amount liquidated with interest, and a request that the papers be transmitted under section 14, Act June 10, 1890, c. 407, 2G Stat. 137 [U. S. Comp. St. 1901, p. 1933], within 10 days from entry of the order, plaintiff may move to vacate the stay.
