
    The People of the State of New York, Respondent, v. Simpson, Crawford Company, Appellant. The People of the State of New York, Respondent, v. William H. Hale, Appellant. The People of the State of New York, Respondent, v. Lazarus Fried, Appellant.
    (Supreme Court, Appellate Term,
    February, 1909.)
    Food — Substances in imitation of butter — Actions for penalties — Sufficiency of evidence.
    The manufacture and sale of oleomargarine are lawful and cannot be constitutionally prohibited; but the Legislature may require that it shall be sold for what it is and not for dairy butter and that foreign substances such as coloring matter shall not be added to it for the purpose of -making it resemble dairy butter.
    Where, in a prosecution under section 26 of the Agricultural Law (L. 1893, eh. 338) prohibiting the use in the -production of oleomargarine of any acid, deleterious substance or animal fats or animal or vegetable oils not produced from unadulterated milk or cream “so as to produce an article in imitation or semblance of natural butter,” it appears that the oleomargarine sold by defendant was sold exactly for what it was and that it contained only those substances which are the inherent and recognized properties of oleomargarine, no cause of action is proved and a judgment in -plaintiff’s favor will be reversed and a new trial ordered.
    Where the evidence in the prosecution for violation of section 26 of the Agricultural Law tends to show that there was no attempt made by defendant to pass off as butter the oleomargarine sold by him which contained cotton-seed oil which a witness for the plaintiff swore was an unnecessary or foreign ingredient and gave a yellowish color to the oleomargarine, causing it, to that extent, to resemble butter in appearance, and witnesses for the defendant, in denial, claimed that cotton-seed oil was a usual ingredient of oleomargarine and plaintiff’s witness, on cross-examination, admitted that no artificial or added ingredients were used for the purpose of coloring and that the coloring matter was that natural to fats used in the manufacture of oleomargarine, the evidence is insufficient to sustain a finding in favor of plain tiff and a judgment in its favor will be reversed and a new trial ordered,
    
      Appeals by the respective defendants from judgments in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, third district, borough of Manhattan.
    Breed, Abbott & Morgan (William C. Breed, of counsel), for appellants.
    Manton M.. Wyvell, for respondent.
   Gildersleeve, J.

The statute (Agricultural Law) governing these cases is very comprehensive. In section 26 it prohibits the use in the production of oleomargarine of any acid, deleterious substance or animal fats or animal or vegetable oils, not produced from unadulterated milk or cream, “ so as to produce an article in imitation or semblance of natural butter.” The statute further provides that “ any person manufacturing, selling, offering or exposing for sale any commodity or substance in imitation or semblance of butter, the product of the dairy, shall be deemed guilty of a violation of the-Agricultural Law, whether he sells such commodity or substance as butter, oleomargarine or under any other name or designation whatsoever, and irrespective of any representations he may make relative to such commodity or substance.” It further provides that “ no person shall coat, powder or color with any coloring matter whatever, butterine or oleomargarine, or any compound of the same, or any product or manufacture made in whole or in part from animal fats or animal or vegetable oils, not produced from unadulterated milk or cream, by means of which such product, manufacture or compound shall resemble butter or cheese, the product of the dairy; nor shall he have the same in his possession with intent to- sell the same, nor shall he sell or offer to sell the same.” So far as the statute may be construed as absolutely prohibiting the manufacture and sale of oleomargarine, it is unconstitutional; and it only becomes valid when construed as prohibiting the sale of oleomargarine which, by artificial means, is made to resemble butter in appearance. People v. Wahle, 124 App. Div. 762. The Supreme Court of the United States has held that oleomargarine is a well-known, wholesome food product and a legitimate subject'of interstate commerce. Schollenberger v. Pennsylvania, 171 U. S. 1. A person manufacturing or selling oleomargarine may be legally required to sell it for and as what it actually is, and upon its own merits; and he is. not entitled to the benefit of any additional market value which may be imparted to it by resort to artificial means to make it resemble dairy butter in appearance. The statutory prohibition is aimed at a designed and intentional imitation of dairy butter, in manufacturing and selling the oleomargarine, and not at a resemblance in qualities inherent in the articles themselves and common to both. People v. Arensberg, 105 N. Y. 123. If the oleomargarine, sold by the defendants in these three actions, was, by artificial means, not essential or incident to the manufacture of the article, but resorted to for the mere purpose of imitation, made to resemble dairy butter, then those judgments must be affirmed. It appears in all three cases that the oleomargarine resembled butter in taste and smell, but there is nothing to show that these qualities of taste and smell are not inherent in both articles, or common to both, without any resort to artificial means. As we have seen, the law, briefly stated, is that the manufacture and sale of oleomargarine are lawful and cannot be constitutionally prohibited; but the Legislature may, and has, legally required that it shall be sold for what it is, and not for dairy butter, and that foreign substances, such as coloring matter, shall not be added to it for the purpose of making it resemble dairy butter. Applying this principle to the cases at bar, we find that, in the Hale case and in the Pried case, the oleomargarine was sold exactly for what it was, and that it contained only those substances which are the inherent and recognized properties of oleomargarine. In the Simpson-Crawford'case, there is some appearance of a conflict of proof upon an essential point. There is evidence tending to show that, while there was no attempt made by the seller to pass off the oleomargarine as butter, still in the composition of that oleomargarine was cotton-seed oil, which one witness, Dr. Geghuee, swears was an unnecessary, or foreign, ingredient, and which gave a yellowish color to the oleomargarine, eausing it to that extent to resemble butter in appearance. Other witnesses, called by defendant, deny this statement, and claim that cotton-seed oil is a usual ingredient of oleomargarine. We have here, apparently, two questions of fact presented, viz.: 1. Was cotton-seed oil a foreign substance and an artificial coloring matter ? 2. Was it used or added for the purpose of making the oleomargarine resemble dairy butter % The court below decided these questions in favor of plaintiff. It seems to us, however, that, in view of the admissions, on cross-examination of plaintiff’s witness, that no artificial or added ingredients were used for the purpose of coloring and that the coloring matter was that natural to fats used in the manufacture of oleomargarine, we must hold that, even in the Simpson-Crawford case, there is a lack of evidence sufficient to sustain the finding in plaintiff’s favor. We. therefore, reach the conclusion,that, under the evidence adduced in all three cases, the plaintiff failed to sustain its cause of action by a fair preponderance of proof, and that all three judgments must be reversed and new trials ordered, with costs to appellants to abide the event, with leave to respondent to appeal to the Appellate Division.

Giegerich and Seabury, JJ., concur.

Judgments reversed and new trials ordered, with costs to appellants to abide event, with leave to respondent to appeal to Appellate Division.  