Opinion
No. 9.
October 17, 1945.
Appeal from the District Court of the United States for the Southern District of New York.
Action by John Dioguardi against Harry M. Durning, individually and as Collector of Customs at the Port of New York, for damages because of the destruction of certain imported merchandise and sale of other merchandise to persons other than the highest bidders. From a judgment dismissing the complaint on the merits after trial, plaintiff appeals.
Affirmed.
John Dioguardi, of Brooklyn, N.Y., pro se.
Marvin M. Notkins, Asst. U.S. Atty., of New York City (John F.X. McGohey, U.S. Atty., of New York City, on the brief), for defendant-respondent.
Before L. HAND, SWAN and CLARK, Circuit Judges.
When this case was here before, 2 Cir., 139 F.2d 774, we held that plaintiff's home-drawn complaint should not be summarily dismissed, but that he should be given opportunity to prove his claims that the customs officials had destroyed certain bottles of "tonics" shipped to him from Italy and had sold other bottles to persons other than the highest bidders at public auction conducted by these officials. Now he appeals upon a record showing that he has had a fair and complete trial, after which the District Court has found upon substantial evidence (not really controverted by him in any important details) that the goods destroyed were done so according to law when they showed signs of spoiling and that the bid accepted was actually the highest bid received. In view of this we need not consider defendant's further suggestion that plaintiff never did prove ownership of or a legal interest in the goods. On plaintiff's own showing and the facts now of record, it is clear that his lively sense of injustice is not properly directed against the customs officials, and that his grievance is against his vendor in Italy, whose charges against the goods he refused to pay at the outset, thereby precipitating the chain of events leading to the present futile suit.
Judgment affirmed.