The opinion
DISSENTING OPINION
Bland, Judge:
I can not agree with the conclusion reached by the majority. I do not disagree with the view expressed that within the common understanding, if ornamental needlework is superimposed upon cloth, the cloth may be said to be embroidered, but I do disagree with the holding that there was no error in the trial court’s refusal to permit the Government to prove that the character of stitching upon the textile under consideration did not make it an embroidered article.
The majority view is that this question is controlled by the case of Kotzin Bros. et al. v. United States, 14 Ct. Cust. Appls. 99, 104 , T. D. 41589. It has been our consistent holding that commercial proof was not admissible to prove that an article named, if it in fact be that article, is known by some other name. The reason for holding that such proof could not be made is on account of the fact that Congress used the phrase “by whatever name known.” The article in this case is lace and the phrase “by whatever name known” was intended to mean that if it in fact was lace it could not be taken out of the paragraph by proving that it was known by some other name. But here the importer insists, and the majority view agrees with such insistence, that the words “by whatever name known” apply to the word “embroidered” which is a modifying word, modifying the word *114 '“article,” and found in the second part of the paragraph. If the merchandise is described under the second part of the paragraph, it.is described by the provision for “all fabrics and articles embroidered in any manner by hand or machinery.” The phrase following the provision “by whatever name known” relers to “articles” and not to the words “embroidered in any manner,” etc.
No one connected with this case has been able to assign any plausible reason why the phrase “by whatever name known” should be regarded as modifying or limiting the term “embroidered in any manner,” etc., except to say that this court passed upon the question in the Kotzin case, supra, when it used the following language:
We are of opinion that by the use of the language “by whatever name known” in paragraph 358 [act of 1913], supra, the Congress intended, for the purposes of that paragraph, to prevent the application of the rule of commercial designation. It was plainly intended, we think, by the phrase “by whatever name known” to include within the paragraph all embroidered articles commonly or commercially so known,, except such as were more specifically provided for.
It would seem that the Kotzin case may be said to support the contention here urged by the importer. I hardly think the conclusion reached here was fully considered in the Kotzin case. If it was, it is my view that the quoted portion of the Kotzin case should not be followed by this court, since it leads us so far afield as, in my judgment, to give to the words “by whatever name kown” an application never intended by the legislature.
I think the judgment of the United States Customs Court should be reversed and the cause remanded for a new trial where the testimony offered by the Government could be received and considered.