People v. Arensberg

CourtNew York Court of Appeals
Citation105 N.Y. 123,11 N.E. 277
Decision Date22 March 1887


Appeal by the defendant from an order and judgment of the general term, Second department, affirming a conviction and judgment of the Kings county sessions, rendered against him on the tenth day of December, 1886.

Wheeler H. Peckham and Frederic R. Coudert, for appellant.

Edward B. Thomas and William P. Quinn, for respondent.


The offense for which the appellant was indicted, and of which he was convicted, was that at, etc., he ‘did unlawfully, willfully, and knowingly have in his possession for sale, keep for sale, offer for sale, and cause and procure to be sold, to certain persons,’ etc., ‘a number of pounds of a certain article and product, made and manufactured in semblance and imitation of natural butter, that is to say, butter made and produced from pure, unadulterated milk, and cream from the same,’ etc., ‘the same not being then and there natural butter, as he (the said Lipman Arensberg) then and there well knew,-against the form of the statute,’ etc.

The statute which the defendant was accused of violating was section 7 of chapter 183 of the Laws of 1885, entitled ‘an act to prevent deception in the sale of dairy products,’ etc. That section prohibits (1) the manufacture out of any animal fat, or animal or vegetable oils, not produced from unadulterated milk, or cream from the same, of any product in imitation or semblance or designed to take the place of natural butter, produced from milk, etc; (2) mixing, compounding with, or adding to milk, cream, or butter, any acids or other deleterious substances, or animal fats, etc., with design or intent to produce any article in imitation or semblance of natural butter; (3) selling, or keeping, or offering for sale, any article manufactured in violation of the provisions of the section.

The indictment contained three counts, the first charging the defendant with manufacturing the prohibited article; the second, with mixing with milk, cream, and butter the prohibited substances, and the third, with selling the prohibited article. He was acquitted on the first and second counts, and convicted on the third.

The defendant contends that the provisions of the seventh section are in violation of the constitution of this state, and subversion of his constitutional rights of liberty, and the enjoyment of property, and he relies upon the decisions of this court in Re Jacobs, 98 N. Y. 98, and People v. Marx, 99 N. Y. 377, 2 N. E. Rep. 29.

The Case of Jacobs arose under a different statute, and relatee to a different subject, viz., the manufacture of cigars in tenement houses. It has no bearing upon the present case, except in so far as it declares general principles which are sought to be applied to the statute now in question. The case of People v. Marx has a more direct application, as it arose under the act of which the one now under consideration is an amendment or supplement. The section under which the defendant in that case was indicted was section 6 of chapter 202 of the Laws of 1884. That section provided as follows:

Sec. 6. No person shall manufacture, out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream of the same, or shall sell or offer to sell the same as an article of food.’

That section was held to be unconstitutional, for the reason that the prohibition was not confined to unwholesome or simulated substances, but absolutely prohibited the manufacture or sale of any compound designed to be used as a substitute for butter or cheese, however wholesome or valuable, or however openly and fairly, the character of the substance might be avowed and published; that the act could not, therefore, be regarded as a health law, nor as intended to prevent deception by the sale of a simulated article as genuine; and stress was laid in the opinion upon the fact that the prohibition was not of the manufacture or sale of an article designed as an imitation of dairy butter, but of any article designed to take the place of dairy butter, however dissimiliar in color or appearance the artificial product might be to ordinary dairy butter. Other statutory provisions, aimed at the imitation of dairy butter, were referred to without criticism, and without intimating any doubt of their validity. Among those were the provisions of chapter 215 of the Laws of 1882, which prohibit the introduction of any substance into imitation butter or cheese, for the purpose of imparting thereto a color resembling that of yellow butter or cheese.

Assuming, as is claimed, that butter made from animal fat or oil is as wholesome, nutritious, and suitable for food as dairy butter; that it is composed of the same elements, and is substantially the same article, except as regards its origin; and that it is cheaper; and that it would be a violation of the constitutional rights and liberties of the people to prohibit them from manufacturing or dealing in it, for the mere purpose of protecting the producers of dairy butter against competition,-yet it cannot be claimed that the producers of butter made from animal fats or oils have any constitutional right to resort to devices for the purpose of making their product resemble in appearance the more expensive article known as ‘dairy butter,’ or that it is beyond the power of the legislature to enact such laws as they may deem necessary to prevent the simulated article being put upon the market in such a form and manner as to be calculated to deceive. If it possesses the merits which are claimed for it, and is innocuous, those making and dealing in it should be protected in the enjoyment of liberty in those respects; but they may legally be required to sell it for and as what it actually is, and upon its own merits, and are not entitled to the benefit of any additional market value which may be imparted to it by resorting to artificial means to make it resemble dairy butter in appearance. It may be butter, but it is not butter made from cream, and the difference in cost or market value, if no other, would make it a fraud to pass off one article for the other.

It is claimed on the part of the defense that the...

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