
    The People of the State of New York, Respondent, v. Robert C. Clark, Appellant.
    Second Department,
    October 7, 1910.
    Food — sale of oleomargarine manufactured to imitate butter — constitutional law — police power — pleading— complaint stating action to recover penalty.
    While the sale of oleomargarine cannot be prohibited without an invasion of constitutional rights, a statute (Agricultural Law, §§ 30, 38), prohibiting the manufacture of oleomargarine so as to imitate dairy butter by the introduction of foreign substances is constitutional.
    The complaint in an action to recover a penalty for a violation of said provisions of the Agricultural Law must allege with reasonable precision that the oleomargarine was made in imitation or semblance of natural butter.
    Pleadings in an action for a statutory penalty are strictly construed.
    A complaint in such action which alleges in substance that the oleomargarine sold, being made of animal fats, etc.,' was “mixed or compounded with * * * milk, cream or butter * * * so as to make it an article or substance or human food in imitation or in semblance of butter,” states a cause of action to recover the penalty.
    Appeal by the defendant, Robert C. Clark, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12tli day of May, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.
    
      
      William C. Breed [Henry H. Abbott with him on the brief], for the appellant.
    
      Taylor More, for the respondent.
   Burr, J.:

This action is brought to recover a penalty for violation of the provisions of the Agricultural Law relative to the sale of oleomargarine (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], §§ 30, 38). That act (§ 30) defines “ butter ” and “ cheese,” when used in article 3, referring to dairy products, to mean “ the products of the dairy, usually known by those terms, which are manufactured exclusively from pure, unadulterated milk or cream or both, with or without 'salt or rennet, and with or without coloring matter or sage.” It defines the term “ oleomargarine” tornean “ any article or substance in the semblance of butter * * not the usual product of the dairy, and not made exclusively of pure and unadulterated milk or cream, or any such article or substance into which any oil, lard or fat not produced from milk or cream enters as a component part, or into which melted butter of butter in any condition or state, or any oil thereof has been introduced to take the place of cream.” The act then provides that (§ 38) “ Ho person by himself, his agents or employees, 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.”

The sale of oleomargarine as such is not unlawful, and could not be prohibited without an invasion of constitutional rights. (People v. Marx, 99 N. Y. 377; People v. Meyer, M App. Div. 1; People ex rel. McAuley v. Wahle, 124 id. 762.) Oleomargarine and dairy butter possess certain qualities, inherent in the articles themselves, which are common to both. The statutory provision is aimed at a designed and intentional imitation of dairy butter in the manufacture of oleomargarine by the introduction therein of some foreign substance. (People v. Arensberg, 103 N. Y. 388; S. C., 105 id. 123 ; People v. Meyer, 89 App. Div. 185.) This prohibition is a valid one. (See cases last above cited.) The sufficiency of the complaint is attacked for failure to allege such imitation, and an appearance of dairy butter in the article sold resulting from such a cause. Unless witli reasonable precision it does this it is open to attack, for in an action to recover a statutory penalty pleadings are strictly construed. (People v. Russ, 138 App. Div. 433; Ithaca Fire Dept. v. Rice, 108 id. 100 ; Rosenstock v. City of New York, 97 id. 337; County of Steuben v. Wood, 24 id. 442; People v. Spees, 18 id. 617.) The complaint alleges first that the oleomargarine sold by defendant “ was an article or product made out of or from animal fats or animal of vegetable oils not produced from unadulterated milk or cream from the same.” If this were the only allegation it would not be sufficient, for this substantially conforms to the lawful oleomargarine of commerce defined in the statute. It next alleges that it was “ an article or product in imitation or semblance oE natural butter.” This would not protect the complaint from successful attack, for the statute describes oleomargarine as having the “semblance” of butter, and if the semblance complained of was the result of the natural properties of oleomargarine its sale would not be unlawful. If it is claimed that “ imitation” is a stronger word than “ semblance,” no act is set forth indicating a purpose to imitate. Finally, it is alleged that the oleomargarine so sold (which it is alleged was made out of or from animal fats or animal or vegetable oils) was “ mixed or compounded with or added to milk, cream or butter * * * so as to make it an article or substance or hu/manfood in imitation or in semblance of butter.” If to the lawful oleomargarine of commerce, as defined in the statute, either of these substances was added so as to make if imitate dairy butter, making it thereby possible to mislead the public into buying the former supposing it to be the latter, we think this would be such violation of the statute as would incur liability for the penalty. It is true that after the words “ milk, cream or butter,” which it is alleged was mixed or compounded with or added to the tiatural oleomargarine, appear the words in the alternative, <£,or animal fats or animal or vegetable oils not produced from milk or cream.” In view of the prior allegation, this may be very much like saying that natural oleomargarine was added to itself, and doubtless the complaint, in view of these alternative allegations, is subject to a motion to make it more definite and certain. But we cannot say that, it states no cause of action, and the interlocutory judgment must be affirmed, with costs.

Woodward, Rich and Oarr, JJ., concurred ; IIirschberg, P. J., concurred in result.

Interlocutory judgment affirmed, with costs.  