IN BE HOLZMAISTEB.

645

In re HOLZMAISTER. (Circuit Court, S. D. New York. May 11, 1894.)
CUSTOMS DUTJES-CLASSIFICATION-"SCHMASCHEN" GLOVES.

Ladles' gloves, 14 inches or less in extreme length, manufactured from the skins of stillborn or immature'kids, imported from Germany, described on the invoice as "schmaschen, low quality," costing from 14.50 to 15.25 marks per dozen, were properly dutiable as "schmaschen" gloves at $1.75 per dozen pairs, under Schedule N, par. 458, of the tarit! act of October I, 1890, and not as "ladies' kid," at $3.25 per dozen pairs, under the same schedule and paragraph, and were not liable to the additional duty of $5 per dozen pairs, imposed by the first proviso of the said paragraph, and assessed upon them by the collector, in addition to the duty of $3.25 per dozen pairs.

Appeal by the collector of customs for the port of New York froIn a decision of the board of United States general appraisers reversij:J.g the decision of the collector of said port upon the classification for customs duties of certain ladies' gloves imported into said port in the month of October, 1892, upon which gloves the said collector assessed duties at the rate of $3.25 per dozen pairs as "ladies' kid," and $5 per dozen pairs additional under Schedule N, par. 458, of the tariff act of October 1, 1890, and the first proviso in said paragraph contained, which, omitting provisions not involved in this action, is as follows:
"458. '" '" '" Ladies' and children's schmaschen of said length or under, one dollar and seventy-five cents per dozen. '" '" '" Ladies' and children's kid of said length or under, three dollars and twenty-five cents per dozen: '" '" '" provided, that all gloves represented to be ofa kind or grade below their actual kind or grade shall pay an additional duty of $5 per dozen pairs: provided, further, that none of the articles named in this paragraph shall pay a less rate of duty than fifty percentulh ad valorem."

Against this classification and imposition of the additiohal duty as above, the importer protested, claiming (1) that the merchandise was commercially "schmaschen" gloves, and dutiable at $1.75 pel' dozen pairs, under said paragraph 458 of the tariff act, (2) or, under the same paragraph, at 50 per cent. ad valorem, and (3) that the character of the gloves was not misrepresented; and that th.e additional duty did not apply. The case came before the board of United States general appraisers, on the application of the importer, under the so-called "Customs Administrative Act" of June, 1890, and testimony was taken in behalf of the importer, and also by the government, before the said board, which testimony was contradictory, as to the trade meaning, at the time of the passage of the tariff act, of the word "schmaschen," as applied to gloves in the markets of this country, although the weight of testimony appeared to be that the term as used in the trade applied chiefly to gloves made from the skins of stillborn lambs, but that the designation "kid schmaschen" was recognized in the trade as applying to gloves made from the skins of stillborn kids. The evidence was almost, if not quite, unanimous that the gloves involved in the present importation were produced from the skins of stillborn or immature kids. On this testimony the board of United States general ap-

praisers found as facts (1) that "schmaschen" does not exclude in question were not comgloves of kid origin; (2) that the mercially known as "ldd" gloves; (3). that they ..are·. "schmaschen" gloves,-and the board thereupon sustained the protest of the importer, and overruled assessment of duty by the collector. The appealed the' case into the circuit court by petition undertbe said administrative act, and further evidence was taken in the circuit court before One of the general appraisers appointed by the court as referee. The goverpment produced the a number glove and trade witnesses tending to show that the term "schmaschen" gloves in the trade referred chiefly, if not entir,ely, to gloves made· from the skins of stillborn or immature lambs, although these witnesses admitted that a,small proportion of "kid or immwture kids might c()me be lot of "schmaschen" gloves. ' The trade .offered on both sides was to the effect that· the kid glove of· couunel'ce was made from the skins of youngk,ids, most of the witnesses considering. that the kid should be fr()m one month to six old, While othersthougM; the minimum age of the kid mightbea week. The importer produced before the referee the testimony of a large number of trade witnesses,all of whom testified that themerch/lndise would be considered as coming within what the trade recognized as "schmaschen" gloves; that this term, in the trade, included gloves made from the skins of stillborn kids as 'Well as from the sltins of immature lambs, although all the witthat the proportion of lamb "schmaschens" was nesses greatly in, eX1cess of the kid "schmaschens," several witnesses admitting on cross-examination that 95 per cent. of "schmaschens" were of lamb origin, while op.e or two of the importer's witnesses contended that they had seen as high as 25 or 30 per cent. of ''kid slinks".in a lot of "schmaschens." None of the importer's trade , witnesses would admit that the importation in question would be known in the trade as "kid gloves" of any kind, but they all called the merchanq:ise "kid schmaschens." Everyone of the importer's witnesses, however, admitted on cross-examination that he would not accept. a delivery of the 371! dozen gloves covered by the invoice in question as a good delivery of "schmaschen" gloves. The witnesses all admit that the trade expected to receive, for "schmaschens," gloves of stillborn lamb origin, but that a small proportion of so-called "kid schmaschens" would be received without affecting a It also appeared uncontralot composed chiefly of dicted in the testimony that the meaning of the 'Word "schmaschen" in the Germanlanguage, irrespective of trade designations, included the skins of, all stillborn. animals used in the making of gloves. On the trial in'the ,circuit court it was urged by the United States attorney that the term "schmaschen"gloves iIi the trade signified, chiefly and primarily, gloves made· from the skins of stillborn or immature lambs, and that the "kid slink" or ''kid schmaschen" was an exception, and did not control the meaning of the word "schmaswhich appeared to cover com.mercially only chen" in the gloves of lamb origin; .and that, as a consequence, the gloves in this

IN RE l'EW YORK

NEWS.

647

importation not being commercially "schmaschen" gloves, but being admittedly made of the skins of immature kids, had been represented upon the invoice on which the importer's entry was made as of a kind or grade below their actual kind or grade, and consequently came within the purview of the proviso imposing the additional duty of $5 per dozen pairs. The importer's counsel contended that the term "schmaschen," in trade, included kid "schmaschens," which were made from the skins of stillborn or immature kids, although such kid "schmaschens" were admittedly far less numerous than the "schmaschens" made from immature lambskins; and that, in any event, the term "schmaschen," as understood in the German language, was broad enough to cover gloves both of kid and lamb origin. The court reserved its decision, and subsequently handed down the following brief opinion affirming the decision of the board of general appraisers, and sustaining the contention of the importer. Henry C. Platt, U. S. Atty., and James T. Van Rensselaer, Asst. U. So Atty., for the collector and the United States. Sullivan & Cromwell (Edward B. Hill, of counsel), for the importer. WHEELER, District Judge (after stating the facts). , Although "schmaschen" gloves are so often of lamb origin that this term is indicative of that origin, it is not universally so, nor far enough so to exclude kid origin. This leaves room for calling these gloves of kid origin "schmaschen" gloves without exposing them to an additional high duty for representing them to be of too low a grade. The judgment of the board of appraisers is affirmed.
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In re NEW YORK DAILY NEWS. (Circuit Court, S. D. New York. May 11, 1894.)
CUSTOMS DUTIES-CLASSIFlCATIO:,<-"PERIODlCALS."

Illustrated supplements, printed In Germany, and in the German language, consisting of an eight-page pictorial sheet, containing short stories, poems, selections of German humor, and other current literature, and numerous lllush'ations appropriate thereto, being a pUblication issued in large numbers in Germany under the title "Lustige Blaetter," and distributed in large editions to various German newspapers in different German cities,-the supplement in question being the same publication in an editon thereof printed purposely for the German New York Sunday News, and having a distinctive title, "New Yorker Lustige Blaetter," with an mustrated heading representing the harbor of New York, the Statue of Liberty, and the Brooklyn Bridge, etc., no date appearing anywhere upon these illustrated supplements, but they being numbered consecutively throughout the year, Nos. 1 to 52, and it appearing upon each number, in the German language, that the same was published by the New York Dally News, at 31 and 32 Park Row, New York City; these supplements being Imported in lots usually of several thousand copies, including two numbers, and being, after importation issued regUlarly as a gratis supplement to the Sunday edition of the New York Daily News,-hcld, that these publications were not "periodicals," and dUty free, under paragraph 657 of the free list of the tariff act of October 1, 1890, but were properly dutiable, as classified by the collector of the port of New York, at 25 per cent. ad valorem, as printed matter, under schedule Y, par. 423, of said
tariff

act