
    JACOT el al. v. UNITED STATES.
    (Circuit Court of Appeals, Second Circuit.
    January 9, 1895.)
    No. 59.
    Customs Duties — Music Boxes.
    Music boxes, small in size, of inferior quality, playing less than six tunes, not musically accurate, wound up with a key permanently affixed to the outside of the box, easily operated by a child, and costing 8.35 francs or less each, are dutiable as loys, under paragraph 430 of the tariff act of October 1, 1890.
    
      _ This is an appeal by importers from a decision of the United States circuit court for the Southern district of New York, entered on May 36,1894, affirming the decision of the board of United States general appraisers, which affirmed the decision of the collector of the port of New York in the classification for customs duty of certain “music boxes” as “manufactures of metal,” under paragraph 215 of Schedule C of the tariff act of October 1, 1890. That paragraph imposed a duty of 45 per cent, ad valorem. The importers claimed that the goods were “toys,” and dutiable, under paragraph 436 of said act, at 35 per cent, ad valorem.
    Albert Comstock, for appellants.
    Wallace Macfarlane, U. S. Atty., and Henry C. Platt, Asst. U. S. 'Atty.
    Before WALLACE, LACOMBE, and SHIPMAN, Circuit judges.
   LACOMBE, Circuit Judge.

The appeal in this case brings up only the decision of the collector which was the subject of protest, and calls for a ruling only as to the articles included in the invoices covered by such protests. Upon the hearing in the circuit court a large number- of samples of music boxes of different sizes and grades were put in evidence, which need not be now considered. The protests upon which this appeal is based covered importations by the Westernland, La Touraine, La Gascoigne, and La -Bretagne. The importer testified before the board of appraisers that, of the music boxes imported by the Westernland, part were turned with a crank and part were wound up by akey. Those turned with a crank the board held to be toys, an opinion approved by the circuit court. No one questions the accuracy of that decision. A sample marked “Exhibit No. 1” was identified as being a fair representative of the goods on the invoices per Westernland, which were operated by winding with a key; the importer testifying that the music boxes on these invoices were identical “in style” in every way with the sample, being a little cheaper and less in size than Exhibit No. 1, and playing a less number of tunes. The highest-priced music boxes on the invoices resembling the sample were worth 8.35 francs each; others thereon were cheaper. The importer claimed that these music boxes, winding with a key, were also toys. He further testified that, upon the invoices per La Touraine, the only music boxes which he claimed to be toys were those like Exhibit No. 1, only smaller and playing a less number of tunes, and costing 5.45 francs or less; that on the invoices by La Gascoigne and La Bretagne there were no “toy” music boxes. The board of general appraisers had before it another sample (Exhibit No. 2) of a larger and more expensive box, but there is no evidence to show that any such boxes were included in these importations, nor in the protests thereon. Upon the taking of proofs in the circuit court' an effort was made to introduce some question as to the classification of other samples there presented; but the witness called to identify them, while satisfactorily proving that they were samples of goods imported by Jacot & Son, failed to prove that music boxes like them were imported by the Westernland and La Touraine. It is manifest, therefore, that the only question properly before that court was as to boxes winding with a. key, identical in style with Exhibit ISTo. 1, and costing, some 8.35 francs, some 5.45 francs, and some; less. The hoard of appraisers held that the boxes turned with a crank, and costing' 5.45 francs and under, were designed for and chiefly used as children’s playthings, hut that the boxes like Exhibit No. 1, which they describe as "small spring boxes, wound with a key, costing about 8.35 francs each, * * * playing six tunes, and the boxes being of mahogany, inlaid,” are not specially adapted nor designed for the amusement of children, and that they are not used, nor suitable to be used, by children as playthings. The sole test they applied was the means employed for operating the boxes, on the theory that, because the "turning of a crank affords occupaiion and amusement to a child,” boxes thus operated are toys, while boxes not thus operated would not be “suitable to be handled as playthings.” This distinction commended itself to the learned judge who heard the case at circuit. Undoubtedly it would be a most convenient criterion for determining the classification of music boxes, but, in our opinion, it is an arbitrary distinction not warranted by the proof's. While a small, cheap music box, playing a few simple tunes inaccurately, and operated by turning a crank, would be a. suitable plaything for a child two or three; years old, and intelligent enough to turn (he crank, we fail to see how it can be maintained that another box, wound up by a key, which is of like cost, of like grade of workmanship, and plays the same tunes, in the same way, would not he a suitable plaything for a child six or seven years old, who manifestly could wind ii up unaided, and listen to the music tbus producen!. Many witnesses were; examinen!, hut the evidence^ wholly failed to show that there; was any special trade-meaning of the weird "toy.” One Avitness testified that in his opinion e;very music box which is worked- either hy a crank or key is a toy, whereas all which are worked by a lever are not:. But. Hi is distinction will not answer, since the evidence shows that many very expensive; Tboxe;s, intendeel solely for adults, are wound with a key. All the either witnesses agreed in the statement that in their opinion the cheaper boxes, which do not produce music accurately enough to give enjoyment, to an adult, and which are made," as one; witness testified, hy mere apprentices, not by skilled workmen, are regarded by them, as toys. But they do not agree as to the limit of price which is the dividing line. Some of them make; it as high as 25.25 francs, but none of them make it lower than 15 francs. Moreover, it appears that the teiy dealers handle expensive music boxees, and that the so-called "toy” boxes are sold to eithers than toy dealers. The trae; test to he applied is best stated by one of the witnesses: It is “the" quality of the instrument, which is governed by the price, largely.” Applying this test to the only instruments properly now before Ibis court for classification, they are found to be small in size, of inferior quality, playing less than six tunes, not musically accurate, wound up with a key permanently affixed to the outside of the box, easily operated by a child, and costing 8.35 francs or less each. These, in our opinion, should be classified for duty as toys. The judgment of the circuit court is reversed, and the case remitted, with directions to classify the merchandise as above indicated.  