
    POMEROY & FISCHER v. UNITED STATES.
    (Circuit Court, S. D. New York.
    November 12, 1903.)
    No. 3,048.
    1. Customs Duties — Classification—Enamel Paint
    
      Held, that certain so-called enamel paint, consisting of a white paint containing zinc, but not containing lead, ground in linseed oil, varnish being added to give a gloss, but without affecting the character of the mixture as a paint, is more specifically enumerated under the provision in paragraph 57, Tariff act July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1630], for “white paint or pigment containing zinc, but not containing lead,” than under the provision in paragraph 53 of said' act, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1630], for “varnishes,” or that in paragraph 58 of said' act, 30 Stat. 154 [Ú. S. Comp. St. 1901, p. 1630], for “all paints, * * * whether crude or dry or mixed, or ground with water or oil or with solutions other than oil, not otherwise specially provided for.”
    Appeal by the importers from a decision of the Board of General Appraisers which sustained the classification for duty by the collector of customs of the merchandise in question.
    See G. A. 4516.
    Albert Comstock and Percy W. Crane, for importers.
    D. Frank Lloyd, Asst. U. S. Atty.
   TOWNSEND, Circuit Judge.

In this case the merchandise is a white paint containing zinc, but not containing lead, ground in linseed oil, and with which some varnish has afterwards been mixed to give it a gloss; thus constituting what is called an “enamel paint.” It was classified for duty as a varnish, under paragraph 53 of the tariff act of 1897, c. 11, § 1, Schedule A, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1630]. The importers contended that it was dutiable at 1^4 cents per pound, under paragraph 57, and, alternatively, at 30 per cent, ad valorem, as a paint not enumerated, under paragraph 58 of the same act. This latter claim the Board of General Appraisers sustained, but the importers appealed to this court in behalf of their original claim, at iji cents per pound. The record shows, without dispute, that the merchandise is exactly described by the terms of paragraph 57, imposing a duty of i§^ cents per pound; the witnesses testifying that the addition of the varnish does not affect the character of the mixture as a paint. It is manifest, therefore, that this claim was the one which should have been sustained.

The decision of the Board of General Appraisers is reversed.  