People v. Elfenbein — 10 N.Y. Crim. 39

Majority

p. 39

Supreme Court-General Term-Fifth Department.

Oct. 21, 1892.

PEOPLE v. ELFENBEIN.

( 48 St. Rep. 37 ; 65 Hun 434 .)

Headnote

Bottles—Labels.

The words “or otherwise produced upon such bottle,” as used in chapter 377 of 1887 as amended by chapter 181 of 1888, do not cover the case of printed or lithographic labels.

■Appeal' by the defendant, Moses Elfembein, from a judgment of the court of sessions of Erie county, entered May 25, 1892, affirming a judgment of his conviction under chapter 377 of the Laws of 1887, as amended by chapter 181 of Laws of 1888, entitled “An act to protect the owners of bottles, boxes, syphons land kegs used in the sale of soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weis beer, white beer, or other beverages.”

Emory P. Close, for appellant..

Tracy C. Becker, for respondents.

The appellant was convicted before the police justice of the city of Buffalo, on the 9th day of April, 1892, for violation of the above mentioned act. This conviction was affirmed on appeal to the court of sessions, and from the judgment of the last named court this appeal is taken.

There was found in the defendant’s possession a bottle, like a quart bottle often used for apollinaris water, and it was claimed that the same was a violation of the rights of one Anthony Young, who was engaged in the manufacture, bottling and selling of mineral waters: The name of Anthony Young was upon a label which had been lithographed and pasted on the bottle with common paste. There was no stamp or cut of the ¡name made inf® the glass itself. The only question, therefore, in this case is, whether or not the possession and use of bottles

p. 40

of this kind, with a printed or lithographed label pasted upon them containing the name of the original owner, is a violation of this statute.

The first section of the statute is as follows: “Sec. 1. Any and all persons and corporations engaged in manufacturing, ■bottling or selling soda waters, mineral or aerated waters, por - ter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weis beer, white beer, or other beverages, in bottles, syphons or kegs, with his, her or its name or names or other marks or devices -branded, -stamped, engraved, etched, blown, impressed, or otherwise produced upon such bottles, syphons or kegs or the boxes used by him, her or it or them, may file in the office of the clerk of the county in which ■his, her nr its or their principal place -of business is situated, and also in the office of the secretary -of state, a.description of the name or names, marks or devices so used by Mm, her, it or them, respectively, and cause such description to be printed once in each week for three weeks successively in a newspaper published in the county in which said notice may have been filed as aforesaid, except that in the city and county of New York, and the city of Brooklyn, in the county of Kings, such publication shall be made for three weeks successively in two daily newspapers published in the cities of New York and Brooklyn respectively.”

The second section renders it unlawful for any person to fill such bottles with any of the materials above mentioned, or with other beverages, or with medicines, compounds or mixtures so marked, or to deface, erase, obliterate, cover up or otherwise remove or conceal any such name, or sell, buy, give, take or otherwise dispose of the same without the written con-' sent of, or unless the same shall have been purchased from, such' ¡person or persons.

By the fourth section of the act search warants may he issued, and possession of the property taken which shall be found to be (held or used in violation of the act, and such property shall be turned over to the owner thereof.

. TM-s conviction cannot be upheld. The statute does not

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cover the case of printed or lithographed labels. A piece of paper thus pasted upon glass bottles is not in any sense branded, stamped, engraved, etched, blown or impressed upon the glass itself. But counsel for the People rest their argument almost exclusively upon the meaning of the following expression, “or otherwise produced upon such bottles, syphons or kegs or boxes,” etc. The meaning of the word “produced,” it is argued, is any method of bringing forth to view any matter or thing.

This definition undoubtedly is correct so far as it goes, but it is not applicable, it seems to us, when taken in connection with the preceding words of the statute, branded, stamped, engraved, etched, blown, impressed. All of these words are aptly chosen, to indicate a permanent and inerasable name or mark upon the bottles, kegs or boxes in which the stuff named is contained. The expression “or otherwise produced upon such bottles, syphons, or kegs or boxes,” etc., is not satisfied, and the crime •against the defendant made out, by proving that he pasted the printed or lithographed label upon the particular vessel mentioned. In this instance Young’s name was not “produced' upon” the bottle. It had been produced elsewhere, and at other times, before the same were pasted upon the bottle. The expression “or otherwise produced upon such bottles,” etc., relates to the same means of engraving upon the bottles, etc., a» the other preceding words indicate, namely, something that' is developed out of the surface of the bottle by engraving, etching or blowing, or other like means, whereby an inerasable impression is produced.

If this view be correct, whatever may be the other questions contained in the case, it follows that the conviction cannot be upheld, and that, consequently, the judgment appealed from should be reversed.

Judgment of the court of sessions of Erie county, affirming the judgment of the police court of the city of Buffalo, reversed* and the defendant discharged.

DWIGHT, P. J., and LEWIS, J., concur.