Commissioner of Agriculture 75 



tional market value which may be imparted to it by resort to artificial 

 means to make it resemble dairy butter in appearance. The statutory pro- 

 hibition is aimed at a designed and intentional imitation of dairy butter, in 

 manufacturing and selling the oleomargarine, and not at a resemblance in 

 qualities inherent in the articles themselves and common to both. (People 

 v. Arensbert, 105 N. Y. 123.) If the oleomargarine, sold by the defendants 

 in these three actions, was, by artificial means, not essential or incident to 

 the manufacture of the article, but resorted to for the mere purpose of imi- 

 tation, made to resemble dairy butter, then those judgments must be affirmed. 

 It appears in all three cases that the oleomargarine resembled butter in taste 

 and smell, but there is nothing to show that these qualities of taste and 

 smell are not inherent in botli articles, or common to both, without any resort 

 to artificial means. As we have seen, the law, briefly stated, is that the 

 manufacture and sale of oleomargarine are lawful and cannot be constitution- 

 ally prohibited; but the Legislature may, and has legally required that 

 it shall be sold for what it is, and not for dairy butler, and that foreign sub- 

 stances, such as coloring matter, shall not be added to it for the purpose of 

 making it resemble dairy butter. Applying this principle to the cases at 

 bar, we find that, in the Hale case and in the Fried case, the oleomargarine 

 was sold exactly for what it was, and that it contained only those substances 

 which are the inherent and recognized properties of oleomargarine. In the 

 Simpson-Crawford case, there is some appearance of a conflict of proof upon 

 an essential point. There is evidence tending to show that, while there was 

 no attempt made by the seller to pass off the oleomargarine as butter, still 

 in the composition of that oleomargarine was cotton-seed oil, which one wit- 

 ness, Dr. Geghuee, swears was an unnecessary, or foreign, ingredient, and 

 which gave a yellowish color to the oleomargarine, causing it to that extent 

 to resemble butter in appearance. Other witnesses, called by defendant, deny 

 this statement, and claim that cotton-seed oil is a usual ingredient of oleo- 

 margarine. We have here, apparently, two questions of fact presented, viz.: 



1. Was cotton-seed oil a foreign substance and an artificial coloring matter? 



2. Was it used or added for the purpose of making the oleomargarine resem- 

 ble dairy butter? The court below decided these questions in favor of plain- 

 tiff. It seems to us, however, that, in view of the admissions, on cross- 

 examination of plaintiff's witness, that no artificial or added ingredients 

 were used for the purpose of coloring and that the coloring matter was that 

 natural to fats used in the manufacture of oleomargarine, we must hold 

 that even in the Simpson-Crawford case, there is a lack of evidence suf- 

 ficient to sustain the finding in plaintiff's favor. We, therefore, reach the 

 conclusion that, under the evidence adduced in all three cases, the plaintiff 

 failed to sustain its cause of action by a fair preponderance of proof, and 

 that all three judgments must be reversed and new trials ordered, with costs 

 to appellants to abide the event, with leave to respondent to appeal to the 

 Appellate Division. 



An appeal was taken to the Appellate Division from this 

 decision and the Appellate Division sustained the decision of the 

 Appellate Term, so that as the decisions now stand the holding 



