
    The People of the State of New York, Appellant, v. Fred. Berghoff, Respondent.
    Third Department,
    March 7, 1906.
    Agricultural Law 4- action for penalty for selling adulterated honey as ' pure — When label used raises question for j.ur’y — no recovery for failure of label to state*ingredients óf go'ods when the defect is not charged in the complaint. • ,
    When, in an action to recover a penalty for a violation of section ,80b of the . Agricultural Law in selling as pure, honey a mixture containing other ingredients, it appears that the label under which the defendant sold the goods had the word “honey” in large type and the words “compound”-and “Honey-Syrup” in small type, there is a question for the jury as to whether or not the ' defendant intended to deceive customers, and -the direction of a verdict against him is error. v -
    Hnder a complaint which- does not charge that the'label used did not conform to the Agricultural Law requiring it to state the ingredients with which honey is mixed (Agricultural Law, § 80b) no penalty for the use of said label can be recovered under section 37-of said ¡statute. • .
    Appeal by the plaintiff, The People of -the State of New Yorb, from an order' of the Supreme Court, made at the Fulton. Trial Term and entered in the-office of the clerk of the county of Fulton on the 20th-day of May, Í9Ó5, setting aside the verdict of a. jury theretofore, rendered in favor of the plaintiff, and granting á. Hew trial of the action. "
    The action is one brought to- recover a penalty for an alleged violation of the. Agricultural Law. In the complaint it is alleged that the defendant “ manufactured for sale, sold and exposed for sale ,* * * a, compound or mixture for pure honey which was mixed with other syrup or ingredients and. adulterated, contrary to section 80b of article 6 of the Agricultural Law, being chapter 33 of. the' General-Laws.” (Laws of 1893, chap.'338,, added by Laws of 1902, chap. 214.) It was also alleged “that -said honey was Wrongfully and' unlawfully " * * * placed in'packages which were not branded or. labeled with a statement giving ingredients of which it was made.” By reason of these facts it was claimed-that the defendant had incurred the penalty imposed by law. (Agricultural Law, § 37, as amd. by Laws of 1901, chap. 656.) The defense was a general denial.
    On the trial it was shown that an agent employed by the Commissioner of Agriculture went into the defendant’s store and asked if he had honey for sale; that he said he had, and that the agent thereupon purchased a pint can of the honey and paid for it. After purchasing it the agent told the defendant he did not think it was properly labeled. An analysis thereafter made of the article purchased showed that it was a compound containing honey and glucose. The following is a facsimile of the label contained upon the can:
    
      
    
    The defendant testified that he made or mixed this honey, using half honey and half corn syrup, and nothing else; that he had these labels printed and put them on the cans; that he sold it for compound honey and told the State agent it was not pure honey. The agent, on being recalled, testified that he told the defendant that liis labels did not comply with the law, and that the ingredients should have been stated in the same size type as the rest of the label. On the trial the court ruled, as a matter of law, that the statute had been violated, and submitted to the jury only the question of -fixing the amount of the penalty, and instructed them that they must find a verdict for the plaintiff for not less than fifty dollars and not more than one hundred dollars. Under such instructions the jury found a verdict for the plaintiff for fifty dollars. The court thereafter made an order setting aside the .vérdict on- the ground that a question of fact was presented for submission to the jury. From this order the plaintiff has appealed. ■ • ■
    
      Julius M. Mayer, Attorney-General, and Joseph S. Rosalsky, Deputy Attorney-General, for the appellant.
    
      Clark L. Jordan, for the respondent.
    
      
       Changed from article 5 to article 6 by chapter 500 of the Laws of 1897.— [Rep.
    
   Chester, J.:

¡There .were clearly .questions of; fact, -presented for. determination by the jury, and these were whether the defendant manufactured for sale, sold" and exposed for sale, to quote from the statute, “.any ¡compound or mixture branded, or labeled, as and for honey which shall be made up of. honey mixed 'with any.other substance- or 'ingredient.” (§ 80b, supra.) The only charge in: the complaint is for manufacturing and selling and exposing for sale a compound or mixture for pure honey which ■ -was mixed with other syrup or ingredients and adulterated contrary to the provisions of the law. .There is no charge in the cqmplaint that the label did notrcon-form with the law requiring, in case of honey mixed with any other ingredient, that there shall be printed on the package- containing such compound a statement gi ving the ingredients of which it is’made, stating that honey is .one. of the ingredients, “ in the same .size type as are the other ingredients.” The charge in that respect simply is that .the packages were not “ labeled with a statement giving ingredients of which it was made.” The principal question litigated on the trial appears tó have been whether the label conformed with the'statnute. That, however, was not within the issues framed by the pleadings.

On the only questions that were within the issues, viz., As to whether or not the compound was manufactured for sale, sold and exposed for sale by the defendant for “pure honey” instead of asa compound or mixture, the evidence was sufficient to require the court to take the verdict of the jury. Upon "those questions the label used was material evidence, as it was made up with the word '“.honey ” in.large full face type and the word “ compound” in smaller and lighter'faced type, and with the ingredients, viz., “Honey-Syrup ” statéd" in still smaller type. The jury might have inf erred'from this that" the defendant intended to deceive a purchaser into the belief that he was buying honey and not a compound.. The court having declined to submit the questions of fact to the jury and having held as a matter of law that there had been a violation of the statute, the verdict directed in favor of" the plaintiff was properly set..aside. The.order, appealed from should be affirmed, with, costs.

All concurred.

Order affirmed, with costs.  