
    The People of the State of New York, Respondent, v. Samuel Glaser, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.).
    Agricultural Law — action to recover a penalty — adulteration — what constitutes sale or offer for sale.
    Where, in an action to recover a penalty for a violation of section 240 of the Agricultural Law which provides that no person shall sell or offer for sale under the name of spirits of turpentine any article which is not wholly distilled from rosin, etc., unless the package containing the articles shall be marked “ adulterated spirits of turpentine,” the evidence is that the defendant at his store, on request, gave- to inspectors of the agricultural department samples which, though drawn from a barrel marked “ spirits of turpentine,” were adulterated, a judgment against the defendant will be reversed in the absence of proof that defendant offered adulterated turpentine for sale except in properly marked bottles.
    G-uy, J., dissents.
    Appeal by the defendant from a judgment of the Municipal Court of the city of ¡New York, borough of Manhattan, first district, rendered in favor of the plaintiff.
    Andrew F. Murray, for appellant.
    Thomas Carmody (Robert P. Beyer, of counsel), attor-1 ney-general, for respondent. . •
   Lehman, J.

The plaintiff has recovered judgment against the defendant for a penalty for an alleged violation of section 240 of the Agricultural Law which provides that “ no person, firm or corporation shall manufacture, mix for sale, sell or offer for sale, under the name of spirits of turpentine, any article which is not wholly distill.ed from rosin, turpéntine, gum" or scrape from pine trees, and unmixed and unadulterated" with oil, benzine or any other substance of any kind whatever, unless the. package containing the same shall be sténciled or marked with letters not less than two inches high ‘ adulterated spirits of turpentine.’ ”

It appears that inspectors of the agricultural department entered the defendant’s store and asked him whether he sold turpentine. They then told him that they were state agents and asked him for a sample. He then gave them samples in bottles produced by the agents. The samples were drawn from a barrel marked on one end “ Spirits of turpentine,” and the defendant showed the agents a bill for this turpentine dated five days before. The samples taken were unquestionably adulterated spirits of turpentine. Upon these facts the trial justice gave judgment for the plaintiff.

It seems to me that this judgment is erroneous. The plaintiff relies upon section 7 of the Agricultural Law, which provides that any person who shall keep store or display any article or product the manufacture or sale of which is prohibited or regulated by the chapter with other merchandise or stock in his place of business shall be deemed to have the same in his possession for sale.” Unquestionably under this section it is a fair inference that the defendant had this turpentine for sale. If the sale or offer for sale were absolutely prohibited, then the plaintiff’s case might be complete; but it was entirely lawful for defendant to sell or offer this turpentine for sale provided the package i-n which it was sold was properly labeled. There is no claim that the defendant offered the turpentine for sale in the original barrel, and the fair inference is that he merely drew any turpentine which he offered for sale from the barrel into some other package., The defendant did not sell or offer to sell the turpentine to the agents and there is no evidence" that he ever sold or offered to sell adulterated turpentine except in properly marked bottles.

Bijue, J., concurs; Gut, L, dissents.

Judgment reversed, with costs, and complaint dismissed, with costs to appellant.  