
    Supreme Court-General Term-Second Department.
    
      May, 1886.
    PEOPLE v. ARENSBURG.
    Oleomargarine—Constitutional law.
    Under chapter 183, Laws of 1885, as amended by chapter 458 Laws 1885, it is a crime to sell oleomargarine so colored as to be an imitation of butter, though the compound was not sold as butter, but as and for oleomargarine.
    Said law, in that regard, is constitutional, the Legislature having power to prohibit a fraud—the simulation of a healthy article of food and one that is so universally consumed by the people.
    People v. Kerin, 4 N. Y. Crim. Rep. 140, distinguished.
    
    Appeal from a judgment of the Court of Sessions of Kings county, of January, 1886, Hon. Henry A. Moore, presiding, convicting defendant, Lipman Arensburg, of a violation of section 1, chapter 183, Laws of 1885, and chapter 458 Laws of 1885.
    The indictment was found in said court February 5, 1886, and the third count thereof under which the conviction was had, charged the defendant with the crime of selling an article manufactured in semblance of natural butter, &c.
    It appeared in evidence that the defendant, who was a dealer in that product, sold under the name of, and as and for, oleomargarine, a compound colored so as to resemble butter.
    
      Coudert Brothers and Wheeler H. Peckham, for appellant.
    
      James W. Ridgway, district attorney, for the people, respondent.
   Barnard, J.

The Legislature is not only the guardian of the public health, but is the protector, of citizens against fraud and imposition.

By chapter 183, Laws of 1885, as amended by chapter 458, Laws of 1885, it was enacted that no person shall manufacture except from unadulterated milk and cream, any product in imitation or semblance of natural butter made from cream, nor shall he sell any article produced in violation of that act. A dead white product of animal fat is so colored as to resemble butter. It is not sold as butter in this case, but as oleomargarine, but it was an imitation of butter and purposely made so.

The Legislature has power to prohibit a fraud—a simulation of a- healthy article of food, and one which is so universally consumed by the people.

The Court of Appeals condemned a law which prohibited the manufacture of an article designed to take the place of butter, but the court seems to make a .distinction between manufacturing a compound from tallow or other fats to take the place of butter, and the sale of the same compound so colored as to be an imitation of butter. People v. Marx, 3 N. Y. Crim. Rep. 200; 99 N. Y. 377.

The case of the People v. Kerin (4 N. Y. Crim. Rep. 140) is not in conflict with this view of the statute.

In that case the accused purchased the adulteration as dairy butter and sold it as such, believing it to be dairy butter.

The case presented is entirely different. The simulated compound is bought and sold as oleomargarine, but is so made as to deceive by a false color.

If oleomargarine may be made, let it present no false appearance.

Judgment affirmed.

Dykman, J., concurs; Pratt, J., dissents.  