
    The People of the State of New York, Respondent, v. Arthur E. R. Laning, Appellant.
    
      Oleomao ga/rine— violation of the Agricultural Law — a manufacture from animal fats or animal or vegetable oils must he shown under section 26, and an intent to sell under section 27, of that law.
    
    In an action brought against a boarding-house keeper, at the instance of the Commissioner of Agriculture, to recovera penalty for keeping, using and serving as food a substance made in violation of the provisions of article 2 of the Agricultural Law (Laws of 1898, chap. 838, as amd. by Laws of 1897, chap. 768), a complaint in which the food thus furnished is described as “a certain oleaginous substance not produced or made exclusively from unadultered milk or cream and not the product of the dairy, but an article or substance colored in imitation or semblance of natural butter produced from pure unadulterated milk or creám of the same/ and which fails to allege that the substance in question had been manufactured from animal fats or animal or vegetable oils riot produced from unadulterated milk or cream, does not state a cause of action under section 26 of the statute above mentioned, as the prohibition contained in that section relates solely to such substances.
    
      Heither can such complaint be sustained under section 37 of the same act in the absence of any allegation of an intent to sell the oleaginous substance therein prescribed as genuine butter or. cheese, as in order to constitute a manufacture a violation of this portion of the statute it is essential that there shall be such an intent.
    ■ Appeal by the defendant, Arthur E. E. Laning, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 10th day of December, 1898, upon the decision of the court rendered after a trial at the Queens County Special Term overruling the defendant’s demurrer to the complaint.
    
      Frank H. Platt, for the appellant.
    
      P. E. Ackert, for the respondent.
   Willard Bartlett, J.:

This action is brought at the instance of the Commissioner of Agriculture against a boarding-house keeper, in pursuance of the provisions of section 8 of the Agricultural Law (Laws of 1893, chap. 338), to recover a penalty of $100 for keeping, using and serving as food for the guests, boarders and employees of the defendant a substance made in violation of the provisions of article 2 of the Agricultural Law, which' article relates to dairy products.

The food thus furnished is described in the complaint as a certain oleaginous - substance not produced or made exclusively from .unadulterated milk or cream and not the product of the dairy, but an article .or substance colored in imitation or semblance of natural butter produced from pure unadulterated milk or cream of the same.”

The defendant has demurred to the complaint on the ground that it does- not state facts, sufficient to constitute a cause of action, and the- sole question which is raised upon this demurrer is whether there is a sufficient allegation that the defendant furnished to his boarders such an article as is prohibited by the Agricultural Law.

In support of his contention the learned counsel for the appellant argues that although other portions of the Agricultural Law contain other prohibitions, it is plain that the plaintiff’s attorney could have had reference, to none except that contained in the first part of section 26 of the statute in question, which reads as follows:

Manufacture and sale of imitation butter prohibited.-—-No 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.” (Laws of 1893, chap. 338, as amd. by Laws of 1897, chap. 768.)

It would seem necessary, in order to bring the case within the scope of this provision, that the complaint should allege that the article or product in imitation or semblance of natural butter, which was kept by the defendant and furnished to his boarders, had been manufactured from animal fats, or animal or vegetable oils, not produced from unadulterated milk or cream.

This view is confirmed by reference to the first part of section 26, before its amendment in 1897, when it read :

Manufacture and sale of imitation butter prohibited.— No ■person, by himself, his agents or employes, 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, any article or product in imitation or semblance of natural butter produced from pure, unadulterated milk or cream of the same.” (Laws of 1893, chap. 338, as amd. by Laws of 1894, chap. 426.)

If .we compare the provision before the amendment with the provision after the amendment, it clearly appears that the prohibition in this portion of the statute formerly related and now relates solely to substances manufactured out of animal fats or animal or vegetable oils not produced from unadulterated milk; so that if the complaint cannot find support elsewhere than in section 26 of the Agricultural Law, the omission to allege that the article kept and furnished by the defendant was made out of. such fats or oils, is fatal to the pleading.

I was at first inclined to think that" the complaint might be regarded as having been drawn under another provision of the statute, amply sufficient to sustain it. This is section 27, which, among other things, provides as follows: “No person shall manufacture, mix or compound witli or add to natural milk, cream or butter any animal fats or animal or vegetable oils nor make or manufacture any oleaginous substance not produced from milk or cream, with intent to sell the same as butter or cheese made from unadulterated milk or cream or have the saíne in his possession with such intent; nor shall any person solicit or take orders for the same or offer the same for sale, nor shall any such article or substance or compound so made or produced be sold as and for butter or cheese, the product of the dairy.” Here the prohibition against manufacturing for sale as butter or cheese any oleaginous substance not produced from milk or cream is not qualified or affected by the prior prohibition against adding animal fats or animal or vegetable oils to natural milk, cream or butter; and the making or selling of such oleaginous substance is forbidden in a clause which is not limited by anything indicating that it is designed to apply only to articles derived from animal fats, or animal or vegetable oils. In order to constitute a manufacture in violation of this portion of the statute, however, it is essential that there shall be an intent to sell the oleaginous substance therein prescribed as genuine butter or cheese; but unfortunately for the complaint before us, it lacks any allegation, of such intent. I am, therefore, unable to perceive how it can he sustained; for the pleader has failed to allege facts sufficient to show that the article or substance furnished by the defendant to his boarders or employees was made in violation of any of the provisions of article 2 of the Agricultural Law; and this he must do in order to make out his statutory cause of action. (Laws of 1893, chap. 338, § 28.)

I think the interlocutory judgment should be reversed and judgment directed for the defendant, with leave to the plaintiffs to amend on the usual terms.

All concurred.

Interlocutory judgment reversed and judgment directed for defendant on demurrer, with costs, with leave to plaintiffs to serve • amended complaint within twenty days on payment of costs of the demurrer and of this appeal.  