DISSENTING OPINION
Rao, Judge:I regret to state that I find myself unable to agree with the decision of the majority in this case.
I am of opinion that the evidence adduced on behalf of the plaintiff is not sufficient to overcome the presumption of correctness inherent in the collector's classification of the machines in question within the provisions of paragraph 372 of the Tariff Act of 1930, as modified by the trade agreement with Switzerland, 69 Treas. Dec. 74, T. D. 48093, for knitting machines, finished or unfinished, and not specially provided for. Such classification presupposes a finding that these machines were knitting machines, and the burden was cast upon the plaintiff to prove otherwise. United States v. I. Magnin & Co., Inc., 21 C. C. P. A. (Customs) 77, T. D. 46394; United States v. Marshall Field & Co., 17 C. C. P. A. (Customs) 1, T. D. 43309. This I believe has not been accomplished in the record as here made.
Neither of plaintiff’s witnesses had any clear idea of the precise operation by which hosiery-mending machines function. They were able to describe the result produced by the machine, but not the process by which that result was reached. Except for the fact that they both were of opinion that hosiery-mending machines do not knit, neither witness was able to state with any degree of expertness the differences in structure, function, and operation, if any, between what they considered to be knitting machines and hosiery-mending machines.
Nevertheless, what little affirmative evidence was adduced by them indicates that the needle on the machine in issue is a “latching” needle and that the stitching in the repair resembles the stitching in the original hose. It seems to me that a machine which creates a knitting stitch is necessarily a knitting machine.
According to the testimony of defendant’s witness, the needle of a hosiery-mending machine takes the last closed loop in the hosiery and latches it over the thread which has been exposed by the run in the stocking, and makes a new loop as the result of the latching-over process. If this be the method by which the machine at bar operates, and all of the testimony elicited at the trial tends so to indicate, it responds to the method of operation of knitting machines generally as described and defined in the Century Dictionary and Encyclopedia, wherein, at page 3304 of volume Y, we find the following:
knitting-machine, * * * Such machines employ barbed or hooked needles, having some form of latching device for catching the thread and drawing it *176through a loop previously made in the same thread, and throwing it off at the right moment. * * * There is also a single-needle hand knitting-machine. [Italics supplied.]
It is significant also that Webster’s New International Dictionary contains the following:
knit * * * 3. To bring or bind together as by knitting or knotting; to unite firmly or closely; to interlock, intertie, intertwine * * *.
knit up * * * to unite, make, or repair by knitting. [Last italics supplied.]
latch * * * 4. Knitting Machines. The piece hinged to the needle, which holds the engaged loop in position while the needle is penetrating another loop * * *. [Last italics supplied.]
I note that the majority of the court rely on the fact “that whereas a knitting machine fabricates hosiery from yarn or thread, the machines of the type under consideration which do not employ thread or yarn in their operation merely repair completed hosiery in which runs have appeared.”
I do not consider it to be consequential that machines such as those before us operate without the use of additional or independent thread or yarn. That a stitch cannot be made without the use of yarn is a self-evident proposition, but whether such yarn is obtained from an extraneous source, or is found in the fabric of a knitted stocking, loosened by a run, it is, and remains, yarn, and is the means by which the stitch is created. The more pertinent, and in fact the only, query is whether the stitch made with the yarn is a knitting stitch. If it is, then it must follow that the machine which makes the knitting stitch is a knitting machine.
The fabric of the stocking which has become damaged or destroyed by the tearing of the thread and the running of the stitch is, by the operation of the machines at bar, re-formed. The stitch employed to re-form the fabric is a stitch which responds to the definition of a knitting stitch. Therefore, the machine which creates the stitch is a knitting machine.
I am not convinced that the common meaning of the term “knitting machine” is so circumscribed by the definitions adverted to by the majority that a machine of the type before us would be excluded from being so denominated. On the contrary, I am firmly of the belief that these machines fall directly within the common comprehension of the term, and, there being no question here of commercial designation, that they are, in fact, knitting machines. Accordingly, I am of opinion that the collector’s classification should be sustained.