IN RE l'EW YORK
importation not being commercially "schmaschen" gloves, but being admittedly made of the skins of immature kids, had been represented upon the invoice on which the importer's entry was made as of a kind or grade below their actual kind or grade, and consequently came within the purview of the proviso imposing the additional duty of $5 per dozen pairs. The importer's counsel contended that the term "schmaschen," in trade, included kid "schmaschens," which were made from the skins of stillborn or immature kids, although such kid "schmaschens" were admittedly far less numerous than the "schmaschens" made from immature lambskins; and that, in any event, the term "schmaschen," as understood in the German language, was broad enough to cover gloves both of kid and lamb origin. The court reserved its decision, and subsequently handed down the following brief opinion affirming the decision of the board of general appraisers, and sustaining the contention of the importer. Henry C. Platt, U. S. Atty., and James T. Van Rensselaer, Asst. U. So Atty., for the collector and the United States. Sullivan & Cromwell (Edward B. Hill, of counsel), for the importer. WHEELER, District Judge (after stating the facts). , Although "schmaschen" gloves are so often of lamb origin that this term is indicative of that origin, it is not universally so, nor far enough so to exclude kid origin. This leaves room for calling these gloves of kid origin "schmaschen" gloves without exposing them to an additional high duty for representing them to be of too low a grade. The judgment of the board of appraisers is affirmed.
In re NEW YORK DAILY NEWS. (Circuit Court, S. D. New York. May 11, 1894.)
Illustrated supplements, printed In Germany, and in the German language, consisting of an eight-page pictorial sheet, containing short stories, poems, selections of German humor, and other current literature, and numerous lllush'ations appropriate thereto, being a pUblication issued in large numbers in Germany under the title "Lustige Blaetter," and distributed in large editions to various German newspapers in different German cities,-the supplement in question being the same publication in an editon thereof printed purposely for the German New York Sunday News, and having a distinctive title, "New Yorker Lustige Blaetter," with an mustrated heading representing the harbor of New York, the Statue of Liberty, and the Brooklyn Bridge, etc., no date appearing anywhere upon these illustrated supplements, but they being numbered consecutively throughout the year, Nos. 1 to 52, and it appearing upon each number, in the German language, that the same was published by the New York Dally News, at 31 and 32 Park Row, New York City; these supplements being Imported in lots usually of several thousand copies, including two numbers, and being, after importation issued regUlarly as a gratis supplement to the Sunday edition of the New York Daily News,-hcld, that these publications were not "periodicals," and dUty free, under paragraph 657 of the free list of the tariff act of October 1, 1890, but were properly dutiable, as classified by the collector of the port of New York, at 25 per cent. ad valorem, as printed matter, under schedule Y, par. 423, of said
''Apj>efa}.b1 the collector of' the port of New of United States general appraisers reversing the decision said collector as to the dutiable character of certain illustrafe'(i; 'supplements printed in Germany in the German lanimported by t'he New York Daily Newl3 Company, which rherchandisewas for duty by the said collector as "printed matterl':;at25'per cent) 'ad valorem, under schedule M, par, 423, of thetari1Nl.ct of October 1, 1890, which is as follows:
;'423;', Books, including books of all kinds, pamphlets and engTavings, bound or lfubound,photographs, etchings, maps, charts, and all printed matteI' notspeciaUyprovided for intbis act, twenty-five per centum ad valorem."
, 'Against. this classification the impQrting corporation protested, claiming ,tbllt the was "periodicals," and duty free, unflertbe free list (paragraph (57) of said tariff act, which is as follows: .
"657. Newspapers and periodicals; but the term 'periodicals' as herein used shall ,be understood to embrace only unbound or paper covered publications, con:taining current literature of the day and issued regularly at stated periods, as weekiy, monthly, or quarterly,"
The \oca\ appraiser reported to collector that the merchandise was pictQpal sheet.s intended to be given away with the German the New Daily News. No testimony was taken by edition tp.e, board of general l:J,ppraisers, and that in its decision, found, that the publication was an eight-page pictorial paper, "New,Yorker Lustige Blaetter;" that these papers contained stories, poems, selections of German humor, and other current literature; that they were issued weekly; that they were to be used as supplements to the German edition of the New York Sunday News. 'As conclusion of law, the board found that they were "periodicals," within paragraph .657,.of the tariff act, and duty free, thereby sustaining the protest of the importers. The collector, thereupo,n, by petition, appealed the case into the circuit court, under the provisions of the customs administrative act of June 10, l!890;and' the board of United States general appraisers made its return to the, court, sending up therewith samples of the printed mattev in question. "'An or.der for the taking of further evidence in the circuit court was obtained on the part of the government, and teatimony was accordingly taken before a referee appointed by the court. From this testill).ony, it appeared. that the supplements in question were printed in Munich, Germany; there being- in that city a Germa;n publication called "Lustige Blaetter," which appeared there in very. large editions, furnished to different German news· papers as a supplement, with various and different headings and devices,. appropriate to the issued in German cities; taat this ":New Yorker Lustige Blaetter" was specially printed in Munich, Germany, for the New YorkDaily News, and was furnished with a special heading, tepresenting the Brooklyn and the Statue of Uberty in New York Harbor; that upon these sl!pplements appeared the statement, in 'German, that they were issued or printed or published (according to the translation of the German
INRE NEW YORK DAILY NEWS.
words used) by the New York Daily News at 31 and 32 Pa,rk row, New York City; that these supplements were numbered regularly during the year, from 1 to 52, but contained no date upon any of the numbers. The German edition of the New York Sunday News, published weekly, contained an advertisement each week referring its readers to the gratis supplement by such and such a number. It was also shown that these comic German extras were received in invoices containing usually two numbers, in large lots, of many thousand copies, and were, after importation, issued regularly, by numbers, with the Sunday edition of the New York German Daily News. On the trial in the circuit court, it was contended on behalf of the government that the uncontradicted evidence showed that the comic extra was merely printed in Munich for the New York Sunday News, with special headings, and the statement that the extra was published in New York City, and that the publication 'had never been, and was not, regularly issued in Germany, so as to bring it within paragraph 657 of the free list of the tariff act, but that it became a periodical only when issued with the weekly edition pf the German Sunday News in New York City. The importers' counsel insi.,ted that the publication was regularly issued in Germany in weekly numbers furnished regularly to many newspapers in that countrJ, and also to the importers in question, and that it was, when imported, a periodical, entitled to free entry, under paragraph 657 of the free list. After deliberation the court handed down the following opinion, sustaining the claim of the collector and of the United States, and reversing the decision of the board of general appraisers. Henry C. Platt, U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty., for the collector and the United States. Stephen G. Clarke, for the importers. WHEELER, District Judge (after stating the facts). A periodical is published in Germany. A part of the Sunday editions is printed in German, with. a heading for the place of .publication of the New York Daily News in New York. This is imported by the New York Daily News in bulk, and issued as a supplement to the New York Daily News Sunday edition, without date. The board of general appraisers have classified this importation as periodical, free, and the collector has appealed. Periodicals are made free with a proviso, among other things, that they are to be issued regularly, at stated periods, as weekly, monthly, or quarterly. Those imported are not issued at all as periodicals before importation. They are like patent insides or outsides of newspapers, sold partly printed, to be completed for publication. They appear to be, therefore, printed matter, dutiable at 25 per cent., under paragraph 423 of the act of 1890, rather than a periodical, under paragraph 657. The judgment of the board of appraisers is reversed
00. v. AMElqOAN S. L. BUTTON CO. et at (Olrcuit CQurt,p. RhQde Island. May 26, 1894.)
1. PATENor-:-bECISION OF PATENT OFFICE. . A declsloll of the patent office awarding a patent after an Interference
contest In which the novelty of the invention is questioned does not rank as aju4lcil,I.l determination of that question, upon which a preliminary injunctiQA may be based.
A decree enjoining the Infringement of a patent In a suit, where the only defense Interposed is the claim that the defendants own the patent, does presumption of the validity of the patent in a second suit, In not which vllUllity is In Issue.
Suit by the Empire State Nail Company against the American S. L. Button COrn.pany and others for· injunction. Complainant moves for a preli11l.inltl'y injunction. · . W. and Alan' D. KenYon, for complainant. W. R respondents. . .' ,.
OARPENTE,n, District .This is a motion for a preliminary injunction under inequity to restrain an alleged inof patent No. issued September 27,1887, to Thoma..s F.:,N; Finch,for furniture nails. The g,rounds on which the motion., ts based are: First, the decision of the patent office on the of prior\tyof invention; and, Secondly, the decree of the circuit court for the southern district of New York in the suit brought by 'this complainant against Edward g. Faulkner and others. The respondents Bailey and Talbot were the patentees of the deVice in qnestion under letters patent No. 248,269, and were put in interference with Finch, under'whom the complainant claims; and the contest was ended by an award of priority to Finch. In that proceeding these respondents made the point that no patent should issue" because the device had been in public use for two years, and this issue was also decided against them. The patent here in suit then issl1ed. The decision of the patent office, which was confirmed on appeal, making the observation that there is no provision of law for the raising and decision of this question in the patent goes on to decide the question on the ground that it is withitl tlieinherent power of the commissioner to look into the question when raised,· for the purpose of enlightening his conscience in the matter of the issue of the patent. The examiners in chief add that the proceeding at most is merely to determine whether a patent shall issue, and that the rights of the parties remain unaffected to 'test the matter in the courts, where a decision may be reached "which shan have the binding force of an adjudication, determining the rights of the parties." This statement expresse\!\, R\!\ well as I could hope to express it, my opinion that, this decision is not to rank as a judicial determi.nation, on which I could properly rely in ordering a preliminary injunction. The Faulkner suit was brought to enjoin those respondents from