People v. Secor — 113 N.Y.S. 487

Majority

p. 487

PEOPLE v. SECOR.

(Supreme Court, Appellate Term.

December 16, 1908.)

Headnote

Food (§ 16*)—Oleomaegabine—Innocent Violation of Statute—Penalty.

Where a boarding house keeper violating the statute relating to oleomargarine purchased the oleomargarine, which was colored to imitate butter, in good faith, believing it to be butter, and there was no circumstance which would lead her to believe that it was not butter, the maximum penalty for violation should not be imposed.

[Ed. Note.—For other cases, see Food, Dec. Dig. § 16.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District. ■

p. 488

Action by the People against Ida C. Secor. Judgment for plaintiff, and defendant appeals.

Reversed, and new trial ordered, unless plaintiff stipulates to reduce judgment.

Argued before GIEGERICH, HENDRICK, and EORD, JJ.

Louis B. Eppstein, for appellant.

William S. Jackson (Francis V. S. Oliver, of counsel), for the People.

It is conceded that the defendant, a boarding house keeper, purchased the oleomargarine in good faith, believing it to be butter. She had no knowledge or information, nor was there any circumstance which would lead her to believe that the substance was not butter.- Indeed, it was necessary to have a chemical analysis to determine that it was oleomargarine colored to imitate butter. It was conceded on the trial that the defendant was entirely innocent-of intent to violate the statute, and a willful violation thereof is nbt ascribed to her. Under the circumstances I think the maximum penalty should not have been imposed. A penalty of $50 would have been adequate.

Judgment reversed, with costs, and a new trial ordered unless the plaintiff stipulates to reduce the judgment to $50, in which event the judgment, as modified, is affirmed, but without costs to either party in this court. All concur.