
    The People of the State of New York, Appellant, v. Joseph Lewis, Respondent.
    Third Department,
    March 10, 1909.
    Agricultural Law — penalty — sufficiency of complaint — adulterated ’ foods.
    A complaint in an action to recover a penalty under the Agricultural Law which contains a reference to the sections thereof alleged to have heen violated, and charges that defendant, at a time and place stated, exposed and offered for sale and sold a compound as lard which was not lard hut an imitation of it, and was an adulterated and misbranded article of food, within the provisions of the statute, is sufficient.
    The exceptions and provisos- mentioned in section-165 of the Agricultural Law defining adulterated and misbranded foods having no relation to the facts alleged in the complaint, it was not necessary to negative them.
    Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the. defendant, entered in the office of the clerk of the county of Eensselaer on the 22d day of. October, 1908, upon the dismissal of the complaint by direction of the court upon a trial at the Eensselaer Trial Term.
    
      Michael D. Nolan, for the appellant.
    
      H. P. Humphrey, for the respondent.
   Chester, J.:

At the opening of the trial the defendant’s counsel moved for a dismissal of the complaint on the ground that it did not state a cause of action. The motion was granted, and from the judgment of dismissal the plaintiff appeals.

' The material portion of the complaint that is brought in question is as follows:

Upon information and belief that the defendant on or about March 7, 1907, at his place of business in the city of Troy, 27. Y., did expose for sale, offer for sale and sell an article of food, adulterated and misbranded within the meaning of and in violation of sections 164 and 165 of article XI of the Agriculture Law, as enacted by chapter 524 of the Laws of 1903, and amended by chapter 100 of the Laws of 1905, in that the said defendant did then and there expose for sale, offer for sale and sell a certain substance or compound as and for lard, which was .not in fact lard, and was an imitation of lard, and an adulterated and misbranded article of food within the provisions of the aforesaid sections.”

Section 164 of the Agricultural Law (Laws of 1893, chap. 338, added by Laws of 1903, chap. 524) provides in part as follows: “ 27o person or persons, firm, association or corporation, shall within this State manufacture, produce, sell, offer or expose for sale any article of food which is adulterated or misbranded within the meaning of this act.”

Section 165' of the Agricultural Law, referred to in the complaint, was added thereto by Laws of 1903 (Chap. 524) and amended by Laws of 1905 (Chap. 100), and defines what constitutes adulterated or misbranded foods.

The plaintiff by its prayer .for relief asks to recover a single penalty of $100.

Under the Code of Civil Procedure (§ 481) the complaint must contain a plain and concise statement , of the facts constituting a cause of action. The complaint in question contains a reference to the sections of the law which the pleader claims were violated, and charges that the defendant at a time and place stated exposed and offered for sale, and sold a compound as lard which was not lard, but was an imitation of it, and was an adulterated and misbranded article of food within the provisions of the law. This, upon the face of it, would appear to be a sufficient statement of the facts to bring it within the condemnation of the statute.

The case of People v. Koster (50 Misc. Rep. 46), cited by the • respondent, is not an authority to condemn this complaint, but rather supports it. The complaint there was condemned because it stated Only a conclusion of law without giving the facts upon which that conclusion was based.

The respondent also urges that the complaint is defective because it does not negative a number of exceptions or provisos contained in said section 165 of the Agricultural Law defining adulterated and misbranded foods. But the exceptions or provisos mentioned in that section really have no relation to the facts alleged in this complaint constituting a violation ; and the section nowhere contains an exception or proviso making it lawful to sell a compound as lard-when it is not in fact lard, but an imitation of it. The allegation in question here contains within itself a sufficient negative that the compound alleged to have been sold was not labeled to show what it in fact was.

We think the complaint was adequate to apprise the defendant of the exact charge against him under the statute, and states facts sufficient to constitute a cause of action, and that it should not have been dismissed.

The judgment should be reversed and a new trial granted, with costs to the ajipellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event. 
      
      
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