People v. Brien , 117 N.Y.S. 246 ( 1909 )

GILDERSLEEVE, P. J.

This is an appeal from a judgment in favor of plaintiff rendered by the court without a jury. The action was brought by the people .of the state to collect a penalty of $100 for the alleged’ violations of the provisions of the New York agricultural law (Laws 189.3, p. 655, c. 338) relating to the sale or use of “the article known as oleomargarine or any article or product in imitation or semblance of natural butter.” The plaintiff has proved that defendant sold to inspectors of the state Department of Agriculture a one-pound print of oleomargarine, and that the said print was clearly branded “Oleomargarine.” It was established at- the trial that the article was not sold as butter; that the article was oleomargarine, looked like oleomargarine, tasted like oleomargarine, and smelled like oleomargarine. The state’s chemist testified that the product had all the characteristics of oleomargarine, that there was no coloring matter present that is not in oleomargarine, that there was no artificial coloring matter present, that what color there was was inherent to the fats of which oleomargarine is made, and that the product resembled “some uncolored winter butter.” It was also proved that the product contained milk. Upon this point the "state’s own chemist, who swore that he had been analyzing products of this character for 18 years, testified as follows:

“Q. (by the Court). There is milk in oleomargarine? A. Yes; it is almost universally used in it. Q. Is it not a fact that all genuine oleomargarine contains milk? A. All; practically all; all that I have personally seen or read about. Q. Did you find in this sample any ingredient which you would characterize in your experience as foreign to oleomargarine? A. I did not. Q. Did you find any ingredient that did not have food value? A. I did not.”

This case seems to come within the authority of People v. Hale and People v. Fried, 62 Mise. Rep. 240, 114 N. Y. Supp. 945, unless it be that a difference is caused by the label which prefixes the word “Holstein” to the word “Oleomargarine.” Holstein is a well-known breed of cows, and can it be said that such advertisement was likely to deceive people into believing that they were purchasing butter? We think not, especially in view of the fact, as above stated, that milk did enter into the composition of the oleomargarine in question. The only inference to be drawn from this advertisement was that Holstein milk was used in the making of the oleomargarine, which may have been a fact.

Further down on the label (plaintiff’s Exhibit B) appears the following:

“Please notice this package of ‘Holstein’ conforms strictly to the pure food laws of the United States,” etc.

The word “Oleomargarine” should have been added to “Holstein”; but" in view of the upper part of the label, clearly setting forth the words “Holstein Oleomargarine,” this omission can hardly have deceived the purchaser into believing that he was buying butter.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event, with leave to appeal to the Appellate Division.

DAYTON, J., concurs.