
    No. 49650.
    Protests 95035-K, etc., of Charles M. Thomas (New York).
   Opinion by

Cline, J.

No oral testimony was produced. The collector in both protests reported that the wheat was part of shipment “arriving at New York under various T. and E. entries from Buffalo,” and was described by the appraiser as damaged and unfit for human consumption, that owing to seepage and other causes the grain was damaged by the absorption of moisture and that the importer applied to the Bureau of Customs for an allowance under section ■563 (a), which application was denied, the Commissioner not being satisfied that the damage was a casualty within the meaning of said section. It.appeared that the wheat was loaded on barges at Buffalo and transshipped through the canal ■system to Brooklyn. The plaintiff cited T. D. 44791 in his brief and attached thereto an affidavit of the vice president of a towing company, relating to the facts. This affidavit, however, was not considered' by the court as it was not ■part of the record. Counsel for defendant also cited Wagner Bros. Feed Corp. v. United States (3 Cust. Ct. 102, C. D. 212) and Charles T. Smith, Inc. v. United States (11 Cust. Ct. 39, C. D. 789) relating to similar wheat which was imported .•at Buffalo and transshipped to New York. On the record presented the court held that duty was properly assessed on the wheat in its condition at the time it was entered at Buffalo and not in its condition when it was unloaded from the barges in New York. The protests were therefore overruled.  