
    WING et al. v. UNITED STATES.
    (Circuit Court, S. D. New York.
    November 10, 1902.)
    No. 3,336.
    1. Customs Duties—Undecorated Fire Brick Weighing Over Ten Pounds.
    Fire brick, not capable of decoration, over 10 pounds in weight, designed for linings to retort ovens, are dutiable, under the similitude clause of section 7 of the tariff act of 1897 [U. S. Comp. St. 1901, p. 1693], as “fire brick, weighing not more than ten pounds each, not glazed, enameled, ornamented, or decorated,” under paragraph 87 [page 1632], and not under paragraph 97 [page 1633], covering decorated or undecorated articles and wares of earthy or mineral substances not specially provided for.
    James R. Ely and Edward B. Whitney, for importers.
    D. F. Lloyd, Asst. U. S. Atty.
   TOWNSEND, Circuit Judge.

The merchandise in question is fife brick, over io pounds in weight, designed for linings to retort coal ovens, assessed for duty under paragraph 97, Tariff Act 1897 [U. S. Comp. St. 1901, p. 1633], which provides as follows:

“(97) Articles and wares composed wholly or in chief value of earthy or mineral substances, or carbon, not specially provided for in this act, if not decorated in any manner, thirty-five per centum ad valorem; if decorated, forty-five per centum ad valorem.”

It is claimed to be dutiable under the similitude clause in section 7 of the act of 1897 [U. S. Comp. St. 1901, p. 1693], as similar in material, quality, texture, and use to fire brick weighing not more than 10 pounds, under paragraph 87 of said act [page 1632], which provides as follows:

“(87) Fire-brick, weighing not more than ten pounds each, not glazed, enameled, ornamented, or decorated in any manner, one dollar and twenty-five cents per ton; glazed, enameled, ornamented, or decorated, forty-five per centum ad valorem; brick, other than fire-brick, not glazed, enameled, painted, vitrified, ornamented, or decorated in any manner, twenty-five per centum ad valorem; if glazed, enameled, painted, vitrified, ornamented, or- decorated in any manner, forty-five per centum ad valorem.”

The importers also claim under other paragraphs of the act, not necessary to be considered.

Counsel for the government relies upon the decision of the circuit court of apeals in the case of Dinglestedt v. U. S., 33 C. C. A. 395, 91 Fed. 112, in which the court holds that said paragraph refers to articles which are susceptible of decoration. It is admitted that these articles are not susceptible of decoration, but that they are in fact fire brick similar to those weighing not more than 10 pounds. Inasmuch as both paragraphs (87 and 97) refer to articles designed for or capable of decoration, the controlling question would seem to be whether the articles are similar to either of the articles named in said paragraph. It must be held that they are more similar to fire brick weighing not more than 10 pounds each. This conclusion is strengthened by the fact that paragraph 97 only covers articles not specially provided for, while paragraph 87 contains no such clause.

The decision of the board of general appraisers is reversed.  