57 N.Y.S. 1057 | N.Y. App. Div. | 1899
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:
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 manu
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.