
    The People of the State of New York, Respondent, v. John Bremer, Appellant.
    
      Bale of oleomargarine “ as butter”—form of complaint for the penalty—it must be-recovered in a civil action—charge as to. the credibility of an inspector of the State-Agricultural Department—application of the Statutory Construction Act.
    
    Where the complaint in an action to recover a penalty for a violation of section 26 of the Agricultural Law (Laws of 1893, chap. 338, as amd. by Laws of 1897, chap. 768) contains no* allegation that the substance in question was offered for sale or sold “as-butter,” it is error to permit the plaintiff upon the trial to amend his complaint by adding such an allegation.
    Where the only evidence tending to show that the defendant had attempted to sell the substance in question “as butter ” was the testimony of one of the-inspectors of the State Agricultural Department to the effect that the defendant told him that he had been selling the substance for butter, and such testimony is not supported by any of the surrounding circumstances, the question as to whether the defendant made the admission should be submitted to the-jury, and it is error for the court to refuse to charge that, if the jury did not believe that the defendant made the alleged admission, they should find for the-defendant.
    Section 37 of the Agricultural Law, as amended by chapter 559 of the Laws of 1900, which prescribes the penalty for a violation of section 26 of that law, contemplated that such penalty should be collected in a civil and not in a criminal.proceeding.
    It will be presumed that all legislation, subsequent to the enactment of sections. 31 and 32 of chapter 677 of the Laws or 1892, relating to the repeal and modification of statutes, was passed in view of the provisions of this act;
    Appeal by the defendant, John Bremer, from a judgment of the-Supreme Court in favor of the plaintiff, entered in the office of the» clerk of the county of Hew York on the 29th day of June, 1901,, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Herbert B. limburger, for the appellant.
    
      Ellis L. Aldrich, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover a penalty claimed to be due for violation of section 26 of the Agricultural Law, as amended by chapter 768 of the Laws of 1897. It is claimed by the respondent that the penalty for such a violation was, at the time this action was commenced, provided for by section 37 of chapter 338 of the Laws of 1893, as amended by chapter 559 of the Laws of 1900. The appellant, however, insists that said section, if applicable, must be construed to authorize a criminal but not a civil action, and further claims that the act was no longer in existence at the time of the trial, and, consequently, no judgment could be rendered under it. The appellant urges that the penalty was fixed by section 37 of the Agricultural Law, as amended by chapter 435 of the Laws of 1899. It would seem, however, that the said section being amended by chapter 559 of the Laws of 1900, the section, as amended, is applicable if it was in existence for the purposes of this case at the time of the trial.

It seems to us that the right to a recovery, if any right of action existed at the time of the bringing of the action, was preserved by section 31 of chapter 677 of the Laws of 1892, and section 32 of the same law, as amended by chapter 448 of the Laws of 1894, wherein it was declared that the repeal of a statute or any part thereof should not affect or impair any rights acquired or any liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, and that the provisions of a law repealing a prior law which are substantial re-enactments of provisions of the prior law shall be construed as a continuation of such provisions of such prior law and not as new enactments; and it is to be presumed that all subsequent legislation was had in view of this provision of the law as to the effect of repeals and modifications of statutes.

We cannot see that-the claim that the section under which this ¡action is brought only authorized a criminal procedure, has any foundation in the language of the statute. It was clearly intended that the persons offending against the provisions of the law should be subject to a penalty which could .only be collected in a civil action. The fact that the penalty is fixed at a sum not less than $25 nor more than $100 for every violation, and that no provision is made as to who shall determine the amount of the sum to be forfeited, would seem in no way to preclude the recovery of the ¡smaller sum mentioned in the statute.

Section 26 of chapter 338 of the Laws of 1893, as amended by chapter 768 of the Laws of 1897, reads as follows:

“ § 26. Manufacture and sale of imitation butter prohibited.— Lío person by himself, his agents or employes, shall produce or manufacture out of or from any animal fats or animal or vegetable oils not produced from unadulterated milk or cream from the same, the article known as oleomargarine or any article or product in imitation or semblance of natural butter produced from pure ¡unadulterated milk-or cream of the same ; or mix, compound‘with or add to milk, cream or butter, any acids or other deleterious substance or any animal fats or animal or vegetable oils not produced from milk or cream, so as to produce any article or substance or any human food in imitation or in semblance-of natural butter, nor sell, keep for sale, or offer for sale any article, substance, or compound made, manufactured or produced in violation of the provisions, of this section, whether such article, substance or compound shall be ' made or produced in this State or elsewhere. Any dealer in any ■article or product, the manufacture or sale of which is prohibited by this act, who shall keep, store or display such article or product, with other merchandise or stock in his' place of business,, shall be deemed to have the same in his possession for sale.”

This section prohibited the production or manufacture, and the sale, keeping. for sale, or offering for sale of the article known as oleomargarine or any article or product in imitation or semblance of natural butter ; and it was evidently intended to meet those cases where oleomargarine was manufactured with the intent that it should .resemble natural butter and be sold as such. There is no prohibition against the manufacture of oleomargarine as such; but when made to imitate natural butter and sold as such there is a violation of the provision of this section of the Agricultural Law.

The complaint in this action averred that the defendant, at Ho. 435 Columbus avenue in the city of Hew York, did keep for sale, offer for sale, have in his possession for sale and did sell a manufactured substance which was a production in imitation or semblance of natural butter produced from unadulterated milk or cream of the same; that the said substance was not butter, but was an oleaginous substance not produced from pure unadulterated milk or cream of the same, but manufactured from animal fats or animal or vegetable oils not produced from unadulterated milk or cream of the same; that the said substance was colored with some coloring matter whereby it was made to and did resemble butter, the product of the dairy.

" The answer consisted of a general denial, and when the case came up for trial at the opening a motion was made to dismiss the complaint on the ground that the law under which the forfeiture was claimed was no longer in existence; that there was no allegation in the complaint that the substance in question was offered for sale or sold “ as butter; ” and that section 26 of the Agricultural Law was unconstitutional. This motion was denied and- exception taken. The plaintiff then moved to entirely change the nature of the claim as stated in the complaint by adding to the phrase “ did sell and manufacture a substance,” etc., the words “ as butter.” This amendment was objected to on the part of the defendant.

It seems to us that such a complete change in the nature of the action ought not to have been made at the trial, and for that, if for no other reason, the judgment should be reversed.

There is an exception to a refusal of a request to charge which needs consideration. The evidence showed that two agents of the Department of Agriculture of the_State of Hew York on one of their tours of inspection were at the store of the defendant and saw a clerk and told him they desired to make an inspection of the butter in the store and the clerk said, “all right.” They then made a ■search throughout the store and found a lot of butter and in an ice box they also found a tub containing a substance which they knew was not butter. The agents testified that there was no attempt made to conceal it, and that the defendant had three or four tubs in his place. .They took a sample of this substance, and it was analyzed by the State Chemist who testified upon the trial that it was oleomargarine. "The only evidence that the defendant had attempted to sell this, article as butter was an alleged admission sworn to by one of the inspectors, who stated that the defendant told them he had been selling it for butter at twenty-seven cents a- pound.

The defendant’s' counsel, before the case was submitted to the jury, requested the court to charge that if the jury did not believe that the defendant made the. alleged statement to the inspector, their verdict must be for the defendant. This request the court declined to charge and the defendant’s counsel excepted. This, we think, was' error. There was no circumstance whatever which tended to support the evidence of the inspector. He alone swore to this admission. The good faith and innocence of.the defendant was conceded by the witnesses of the plaintiff; and where the whole case depends upon an admission which is unsupported by any surrounding circumstances, and is testified to by a party who is seeking evidence, it seems to us that the question as to whether such admission had been made was one for the jury. It must be borne in mind that admissions are the most unreliable kind of evidence and that the interpolation of the words “as butter” would' make all the difference between an admission by the defendant of having done an act which he had a right to do, and an admission of doing an act which brought him within the prohibition of the law.

Judgment and order should, therefore, be reversed, new trial ordered, with costs to appellant to abide event.

O’Brien, Ingraham, and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  