106 N.Y.S. 621 | N.Y. App. Div. | 1907
The sole question presented by this appeal is': Does the complaint state facts sufficient to constitute a cause of action ? It is alleged:
“ Third. That on or about the 14th day of December, 1905, at his place of business in the City of Buffalo, County of Erie, State of Hew York, the above-named defendant sold," offered for sale and exposed for sale an article of food named and designated as Tomato Catsup, which catsup was ' labeled as follows: ‘ Prepared from whole, ripe tomatoes, no artificial color and contains one-tenth (1-10) of Soda Benzoate.’ That such catsup branded and labeled as afore
Section 164 of the Agricultural Law provides: “ No person or persons, firm, association or corporation shall within this State manufacture, produce, sell, offer or expose for sale any article of food which is adulterated or misbranded within the meaning of this act. The term food as used herein shall include all articles used for food, confectionery or condiments by man, whether simple, mixed or compound.”
The language of the section is broad and comprehensive and it is clear that the acts alleged to have been done, by the defendant fall within its condemnation unless permitted 'by section 165 of the Agricultural Law¡ Section 165 defines the meaning of the word “ misbranded.” It provides:
“ * * * An article of food shall be deemed to be misbranded:
“ First. If it be an imitation of or offered for sale under the distinctive name of another, article. '* * *
“ Third. If the package containing it or its label shall bear any statement regarding the ingredients or the substances contained therein, which statement shall be false or misleading in any particular, or if the same is falsely branded as to the State or Territory in • which it is manufactured or produced : Provided, That an article of food which does not contain any added poisonous or deleterious '.ingredients .shall not be deemed to be adulterated or misbranded in the following cases: First. ■ In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not included in definition first of misbranded articles of food in this section. Second. In the case of articles labeled, branded or tagged so as to plainly indicate that they are mixtures, compounds, combinations, imitations, or blends: Provided, that the same shall be labeled, branded or tagged so as to show the character and constituents thereof. * *
So far as the second exception is concerned, it is provided that a
Where articles of food are labeled, branded or tagged so as to indicate that they are compounds, combinations, imitations or blends, .there is no liability under the statute provided the same shall be labeled, branded or tagged so as to show the character and constituents thereof.
Thus construed, "we think the provisions of the statute are consistent, are reasonable and beneficial, and if we are right it follows that the defendant violated the statute because the statement put upon the label upon the goods in question was false, in that it stated that it contained no artificial color, when in fact it did ; and in that it stated that it contained one-tenth of soda benzoate, whereas it contained twenty-two one-hundredths of one per cent thereof, and also in that the article in question contained benzoic acid, not mentioned in the label.
All concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.