
    The People of the State of New York, Respondent, v. Nut-Ola Fat Products, Inc., Appellant.
    First Department,
    May 29, 1936.
    
      
      Albert M. Gilbert of counsel [Aaron S. Yohalem, Jacob Aks and Bernhard Bloch with him on the brief; Abraham M. Davis, attorney], for the appellant.
    
      Robert P. Beyer, Assistant Attorney-General, of counsel [John J. Bennett, Jr., Attorney-General], for the respondent.
   Per Curiam.

The question whether the defendant’s product constituted a substance in imitation of butter or a substance similar to oleomargarine should have been submitted to the jury as an issue of fact. Furthermore, testimony offered by the defendant tending to show that its product was not , a substance in imitation or semblance of butter ” nor a “ similar substance ” to oleomargarine (Agriculture and Markets Law, § 59) was erroneously excluded by the trial court.

The determination of the Appellate Term and the judgment of the Municipal Court should be reversed and a new trial granted, with costs to the appellant in all courts to abide the event.

Present — Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.

Determination appealed from and judgment of the Municipal Court unanimously reversed and a new trial granted, with costs to the appellant in all courts to abide the event.  