
    United States v. Silverman
    (No. 2616) 
    
    Consent Oedee — “Metallophones”—Musical Insteuments — Toys.
    Articles known as “metallophones,” consisting of wooden frames holding thin pieces of metal, designed so that they give off a series of musical tones when the metal pieces are struck with a wooden hammer, were classified as toys under paragraph 1414, Tariff Act of 1922, and a protest claiming them to be musical instruments under paragraph 1443 sustained. Upon written consent of importer’s counsel the judgment of the Board of United States General Appraisers as to such merchandise is reversed.
    
      United States Court of Customs Appeals,
    November 21, 1925
    Appeal from Board of United States General Appraisers, Abstract 49182
    [Affirmed in part and reversed in part.]
    
      William W. Hoppin, Assistant Attorney General (Fred J. Carter, special attorney, of counsel), for the United States.
    
      Allan B. Brown for appellee.
    Before Graham, Presiding Judge, and Smith, Barber, Bland, and Hatfield, Associate Judges
    
      
       T. D. 41213.
    
   Barber, Judge,

delivered tbe opinion of the court:

The merchandise involved in this appeal when the protest was heard by the Board of General Appraisers consisted of accordions, so-called metallophones, and celluloid doll sets. The metallophones consist of a small wooden frame trapezoidal in form, upon and across which are small, flat, thin, rectangular pieces of metal referred to as “keys,” loosely held in place by small nails driven into the longer sides of the frame. The number of such metal pieces on the typical samples are 6,10, or 15 according to the size of the frame. One sample shows the wooden frame to be glued in a cardboard box. The others apparently are not. The metal pieces are labeled, respectively, with letters employed in the musical scale. When these metal pieces are struck by a wooden hammer a series of musical tones is produced.

All the merchandise was classified by the collector as toys under paragraph 1414 of the act of 1922.

The protest, which was sustained by the board, claimed classification of the accordions and metallophones under paragraph 1443 of the act as musical instruments.

The only evidence, aside from the exhibits, that the metallophones áre musical instruments, was given by one witness, a musician, who said:

It is possible to play it * * *. I haven’t played on it. I have tried to; but I haven’t played on them.

The doll sets were held by the board to be properly classifiable under paragraph 31 of the act which provides for—

compounds of pyroxylin, of other cellulose esters or ethers, or of cellulose, by whatever name known. * * * That all such articles * * * whether or not more specifically provided for elsewhere, shall be dutiable under this paragraph.

No question is. raised here as to the classification of the accordions and the celluloid doll sets.

As to the metallophones, the importer consents in this court by written notice herein filed, that an order may be entered “reversing the decision of the Board of General Appraisers as to the metallo-phones covered thereby and holding said metallophones to be dutiable at 70 per centum ad valorem as assessed, and affirming said decision in all other particulars.”

As the Government’s sole claim here is that the board erred in holding these metallophones classifiable as musical instruments, and as the importer in effect concedes that they are not properly so classifiable, the judgment of the Board of General Appraisers as to such metallophones is reversed, but in all other respects is affirmed.

Affirmed in part and reversed in part.  