
    SUPREME COURT—APP. DIV—SECOND DEPT.,
    March, 1909.
    THE PEOPLE v. FRANK TEELE.
    (131 App. Div. 87.)
    Foods—Oleomargarine.
    Where a person calling himself “ the butter man ” receives an order for a tub of butter, but delivers instead a tub of oleomargarine artificially colored so as to resemble butter, he is properly convicted of a violation of section 26 of the Agricultural Law.
    The gist of the offense is not deceit in selling the article, but consists in the sale of oleomargarine manufactured “ in imitation or semblance of natural butter.”
    Appeal by the defendant, Frank Teele, from a judgment of the Court of Special Sessions of the second division of the city of New York, in favor of the plaintiff, entered on the 2d day of October, 1907, convicting the defendant of violating chapter 338 off the Laws of 1893, as amended.
    
      Henry J. Goldsmith, for the appellant.
    
      John F. Clarke and Peter P. Smith, for the respondent.
   Woodward, J.:

The evidence before the court clearly established that the defendant entered the restaurant of one Mrs. McLean at Coney Island on the 26th day of June, 1907, and announced himself as “the butter manthat Mrs. McLean responded, “I’ll have one tub of butter, please;” that- defendant said, “one tub?” and that Mrs. McLean answered “yes;” and that the defendant then went out and brought in a ten-pound package; that he left the same on the ice chest' and then went to the desk and was paid a sum of money, and then left the place; that the complaining witnesses, agents of the agricultural department, then took samples of the contents of the tub and gave them over to a chemist, who pronounced them oleomargarine. It is not disputed that the contents of the tub was oleomargarine, but it is urged that the evidence does not disclose that the defendant sold it as butter. In this we believe there is no merit; the evidence shows that the defendant declared himself to be the “butter man,” and that Mrs. McLean ordered one tub of butter, and that what she received was not butter, but oleomargarine. There is probably mo doubt of the right of the defendant to sell oleomargarine as oleomargarine (People ex rel. McAuley v. Wahle, 124 App. Div. 762), but in this case he appears to have represented that he was selling butter, and that the purchaser ordered butter, and that the stuff delivered was not butter. It is complained that the prosecution did not produce Mrs. McLean to testify that she bought butter, but there was no dispute as to the facts as testified to by the complaining witnesses, and if it was true that she ordered and expected to receive oleomargarine, she was an available witness for the defendant, so that there is no particular inference to be drawn from her absence from the witness stand.

It is doubtless true that the statute in terms prohibits the sale of oleomargarine, manufactured or produced “in imitation or semblance of natural butter,” and that that, rather than deceit in the sale of the article, is the gist of the offense; but obviously the statute was intended to prevent the sale of oleomargarine for butter. Now, in this case, we have the established fact that the defendant sold oleomargarine as and for butter,

and that the article sold had coloring in it. A bottle containing a sample of it was put in evidence. This was enough to justify a finding, which we must presume was made, that the oleomargarine sold for butter was actually colored to imitate butter.

The judgment of conviction should be affirmed.

Hirschberg, P. J., Jerks, Gayror, and Miller, JJ., concurred.

Judgment of the Court of Special Sessions affirmed.  