
    The People of the State of New York, Respondent, v. Nathan Straus, Jesse I. Straus, Percy S. Straus and Herbert N. Straus, Appellants.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Penalties — action to recover — judgment — appeal.
    A judgment in favor of plaintiff, in an action to recover a penalty for selling a bottle of hydrogen peroxide which contained less than three, per cent of hydrogen dioxide as required by law, affirmed.
    Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of the plaintiff: after a trial by the court without a jury.
    
      Wise & Seligsberg (Isaac Lande, of counsel), for appellants.
    Thomas Carmody, attorney-general (J eróme Steiner, of counsel, Joseph H. Kohan, with him on brief), for respondent.
   "Whitakee, J.

Plaintiff recovered judgment against defendants for a penalty of fifty dollars and costs in the Municipal Court of the city of New York, without a jury on January 14, 1913, for selling a bottle of hydrogen peroxide not up to the standard required by law, and defendants appeal to this court.

It is claimed that the legal requirement is that the hydrogen peroxide sold by defendants should liave contained three per cent, hydrogen dioxide, whereas it only contained two and four hundred and thirty-nine thousandths per cent, being about twenty per cent, below the requirement. Defendants claim that hydrogen peroxide does not appear in the United States Pharmacopoeia except in the index and therefore no standard of purity or quality is prescribed. The United States Pharmacopoeia does however recognize “ hydrogen peroxide ” and the evidence shows that hydrogen peroxide, the drug sold by defendants, and hydrogen dioxide ” are the same, and the quality of the latter is prescribed at three-per cent.

Defendant also claims that from the time of the purchase of the article on October second until October tenth, the day it was analyzed, it was handled and kept in such a way as would tend to its deterioration to the extent of its deficiency. The defendants also claim that the goods having been “ guaranteed ” to them under the Food and Drugs Act, June 30, 1906,” which is the national act, they are absolved from liability by section 240 of chapter 422, Laws of 1910. So far as the first of these defenses is concerned, it would be absurd to allow the sale of an impure or imperfect standard article, the uses and purposes of which are known and recognized by the public, by simply changing the name from the one used in the United States Pharmacopoeia to one conveying the same meaning to the public but somewhat differently expressed. The case of State Board of Pharmacy v. Gasau, 195 N. Y. 197, cited by defendants to uphold this portion of their defense, has no application. That action was for the sale of impure cream of tartar by a grocer and the statute applied neither to the person who sold nor to the article as sold by him. Concerning the second claim of defendants; that was a question of fact which was .decided in favor of plaintiff upon what I consider a preponderance of evidence. As to the third claim by the defendants; the guaranty which they claim absolves them was a guaranty made under the United States statute, and was simply ‘ ‘ that all goods billed hereon are guaranteed under the Food and Drug Act, June 30, 1906, No. 352:67.” Chapter 422, Laws of 1910, section 240, provides that a guaranty to absolve the seller from liability must be a guaranty of the manufacturer or seller to the effect that the drug was not adulterated or misbranded within the meaning of that article and must state that the drugs are not adulterated, misbranded or substituted within the meaning of the provisions of the statutes of the state of New York, and other statements are also required to be stated in the guaranty. The guaranty claimed by defendants does not comply with this section.

Judgment should be affirmed, with costs.

Bule, J., concurs; Lehman, J., taking no part.

Judgment affirmed, with costs.  