
    UNITED STATES v. G. M. THURNAUER & BRO.
    (Circuit Court, S. D. New York.
    January 18, 1907.)
    No. 4,016.
    Customs Duties — Classification—Decorated China — Commercial Designation.
    The provision for decorated china, in Tariff Act July 24, 1897, e. 11, § 1, Schedule B, par. 95, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633], was used in a commercial sense which includes china ware having a brown stain or glaze on the sloping underside, tending to conceal finger marks, etc.
    On Application for Review of a Decision of the B'oard of United States General Appraisers.
    The decision below reversed the assessment of duty by the collector of customs at the port of New York, on the authority of a former decision of the Board. G. A. 5,336 (T. D. 24,434). Following is an extract from the opinion of the Board in the present case: “At the hearing in the case, a member of the importing firm appeared and testified that the brown coloring matter in the glaze was employed to serve a useful, and not ornamental, purpose— that is, to hide finger marks and smoke; the articles being intended for use in serving eggs and other food that has been cooked in them.
    D. -Frank Lloyd, Asst. U. S. Atty.
    Walden & Webster (Henry J. Webster, of counsel), for importers.
   HAZEL, District Judge.

The single question here presented is whether certain china ware, consisting of nappies and round china dishes, was or was not decorated. The collector classified the merchandise as “china, * * * painted, tinted, stained, enameled, printed, gilded, or otherwise decorated dr ornamented in any manner,” at the rate of 60 per cent, ád valorem, under paragraph 95, Act July 34, 1897, c. 11, § 1, Schedule B, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633]. The Board sustained the protest of the importers, and held the goods for duty, under paragraph 96, at 55 per cent. The proofs given in this court show that, in the year 1897 and prior thereto, the articles were known generally in usage and trade as decorated china. Such being the fact, I am of the opinion that the case of Koscherak v. United States, 98 Fed. 596, 39 C. C. A. 166, cited by the importer, is inapplicable. Two witnesses, in behalf of the importer, testified that there was no trade designation in the year 1897; that the china ware in fact is not decorated-, and the brown coloring or stain on the sloping underside of the dish applied solely to its Usefulness. Undoubtedly the staining or glazing of the dish tends to conceal smoke and finger marks; but, nevertheless, I think that under the broad terms of paragraph 95 the articles in question are included, and that they aré decorated.

The decision of the Board is therefore reversed.  