People v. Gottfried ( 1909 )

SEABURY, J.

Judgment for a penalty has been recovered against the defendant for the alleged violation of section 28 of the agricultural law of this state (Laws 1893, p. 664, c. 338; sections 8 and 37, c. 338, pp. 658, 666, Laws of 1893, and acts amendatory thereof [Laws 1901, p. 1677, c. 656, § 1; Laws 1907, p. 184, c. 137, § 1]). The defendant was engaged in the bakery business at No. 125 East Houston street, New York City. Inspectors of the department of agriculture found on said premises a tub full of a substance which was marked “Bakers’ Choice.” On the tub was also stamped the word “Oleomargarine.” The defendant’s wife, who' was in charge of the bakery, stated'in response to questions of the inspectors that the substance was purchased to be used in the bakery. A sample of the substance was taken by the inspectors and was analyzed by a chemist. In reference to it the chemist testified:

“I found it to be a substance other than butter, commonly known or answering the description of oleomargarine.”

The chemist admitted that he did not taste the substance or examine its texture. The evidence offered by the plaintiff was wholly insufficient to establish that “Bakers’ Choice,” or the substance contained in the tub found in the defendant’s bakery, was made “in imitation orín semblance of natural butter.” Evidence presented on behalf of the defendant showed that the substance was known as “Bakers1 Choice,” and that neither its taste nor texture resembled butter, and that it contained no poisonous matter, and that it was not colored. The evidence offered by the defendant was clear and direct, showing the ingredients contained in the substance, and pointed out the particular respects iii which that substance differed from natural butter. This evidence was not contradicted, except by the general statement of the chemist that the substance answered the description of oleomargarine. To sustain this judgment, upon the record now before us, it would be necessary for us to hold that the use in "any bakery of a substance answering the description of oleomargarine was illegal. Such is not the law of this state. People v. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. Rep. 34; People v. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. Rep. 534; People ex rel. McAuley v. Wahle, 124 App. Div. 762, 109 N. Y. Supp. 629.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.