
    Nathaniel Waterbury, App'lt, v. Michael Egan, Resp't.
    
      (City Court of New York, General Term,
    
    
      Filed April 14, 1893.)
    
    1. Sale—Defense—Oleomabgabinb.
    In an action for goods sold, an answer setting up that the goods sold were oleomargarine, which was an article designed to take the place of butter and was so offered by plaintiff and so sold to defendant as an article of food, contrary to law, and the contract for the sale of the same was illegal and void, does not set up a legal defense. The plaintiff had a right to 'manufacture and sell an article designed to take the place of butter as an article of food, and any legislation to the contrary is unconstitutional.
    2. Same.
    To bring the article within the statute it must affirmatively appear that it actually imitated and resembled butter, and that such resemblance was caused by the use of ingredients not necessary or essential to the article itself.
    3. Same—Iktebstate commebce.
    No law of the state can "interfere with the sale of the commodity in question in the original package when brought from another state. To do so would conflict with and contravene § 8 of art. 1 of the federal constitution.
    Appeal from judgment in favor of defendant, entered upon verdict directed by the court.
    
      Cromwell G. Macy, for app’lt; J. Woolsey Shepard, for resp’t.
   Fitzsimons, J.

The complaint herein states that the plaintiff sold to defendant goods of the value of $150, and demands judgment for that amount. The defendant’s answer is as follows:

First. That defendant has no knowledge or information sufficient to form a belief as to the delivery of the goods and merchandise mentioned in the complaint.

Second. For a second distinct and separate defense to plaintiff’s alleged cause of action, defendant alleges that the dealing in and sale of the merchandise mentioned in the complaint and bill of particulars herein, to wit, oleomargarine, which was manufactured of an oleagenous substance or substances of a compound of some other than that produced from unadulterated milk, or of cream from the same, and was an article designed to take the place of butter, and was so offered by plaintiff, and so sold to defendant as an article of food, contrary to law, the same being the merchandise described in the complaint, and the contract for the sale of same was illegal and void at the time of said sale.

And defendant further avers that, at the time of the alleged sale of the merchandise mentioned in the complaint, the sale of same was specifically prohibited by the laws of the state of New York, and the sale of same made a crime.

Wherefore, defendant demands judgment that the complaint be dismissed, with costs.

The answer of the defendant presents no legal defense. The plaintiff had a right to manufacture or sell an article designed to take the place of butter as an article of food; any legislation to the contrary is unconstitutional. People v. Arensberg, 103 N. Y., 388; 3 St. Rep., 621.

The issue herein does not charge the plaintiff with selling an article imitating or resembling butter, which is an unlawful act, People v. Arensberg, 105 N. Y., 123; 6 St. Rep., 789; it simply charges him with selling an article designed to take the place of butter, which is not unlawful. Therefore, under the issue drawn herein, all the testimony introduced by defendant, and properly objected to by plaintiff, was irrelevant and improper, and should have been excluded; it was error to admit the same, and with said testimony out of the case there is nothing either in the pleadings or the testimony showing that defendant had a legal defense herein, and the motion made by plaintiff’s counsel for judgment upon the pleadings should have been granted. It was error'to deny the same.

For argument's sake, however, grant that the answer is sufficient. That the plaintiff is therein charged with having sold an article imitating or resembling butter contrary to the statute, chap. 183, Laws 1885, the same beiñg the goods, the value of which is sued for herein, yet there is not scintilla of testimony in the whole case even tending to show that the goods mentioned in the complaint resembled or imitated butter, or were represented by plaintiff or any other person to be butter. There is some testimony showing that plaintiff related to defendant the ingredients of oleomargarine, and that such goods had to be finished off and titivated to make them marketable and resemble natural butter; but it is not shown that that was said of the goods in question, and even if such a statement was made by plaintiff, the sale because of such statement would not be an unlawful act, but conceiving the goods sold it must appear affirmatively as a matter of fact that the commodity sold actually imitated and resembled butter and that such resemblance was caused by the use of ingredients not necessary or essential to the article itself. 103 N. Y., 388; 3 St. Rep., 621. As there is no such testimony in the case it was error for the trial justice to direct a verdict in favor of defendant; on the contrary, because of the nature the act just referred to it would have been but proper and right, upon the pleadings and testimony to have directed a verdict in favor of the plaintiff.

Further, the undisputed testimony in the case shows that the oleomargarine in question was imported from Indiana, U. S., into this city, consigned to plaintiff, who sold the same in the ordinary form in the original package in which it came, having thereon a IT. S. revenue stamp, and that plaintiff had a U. S. license for the sale thereof; under these circumstances in any event no law of the state could interfere with the sale of the commodity in question. To do so would be to conflict with, and contravene § 8, of article 1, of the Constitution of the United States, which vests in congress the right “ to regulate commerce with the foreign nations and among the several states, and with the Indian tribes.”

Interstate commerce, which consists in the transportation, purchase, sale and exchange of commodities, is national in its character and must be governed by a uniform system. So long as congress does not pass any law to regulate it or allowing the state so to do, it thereby indicates its will that such commerce shall be free and untrammled, and any state law to the contrary is unconstitutional. Leisy v. Hardin, 135 U. S., 100, and 44 Fed. Rep., 276.

If oleomargarine introduced disease, infectious or otherwise, into this state, it could not be the subject of commerce, 135 U. S., 100, and the constitutional provision above referred to could not be invoked in its favor. But there is nothing to show that such is the case except the argument of respondent’s counsel. The act of 1885 appears to have been enacted not for the purpose of protecting the inhabitants of the state against disease caused by the use of oleo, but for the purpose of preventing them from being misled and imposed upon. So that any person selling them oleo, which resembled butter when they asked for and supposed that they were really purchasing dairy butter might be punished for the deception practiced.

For these reasons it seems to us clear that the defendant had not legal defense to the action at bar, and that judgment upon both the pleadings and all the testimony should have been rendered for plaintiff. It was error to direct a verdict for the defendant. 0

The judgment is reversed and judgment is rendered for plaintiff for the amount claimed, with interest and costs and costs of appeal.

McG-owx and Yax Wyck, JJ., concur.  