People v. Elfenbein

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 mame made into the glass itself. The only question, therefore,. ,in this case is, whether or not the possession and use- of bottles ■of this kind, with a printed or lithographed label pasted upon -them 'containing the name of the original owner, is a violation of ithis 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, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, ■weis beer, white beer, or other beverages, in bottles, syphons or tkegs, 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 or 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 dévices so used by him, 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 consent of, or unless the same shall have been purchased from, such person or persons.

By the 4th section of the act search warrants may be 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.

This conviction cannot be upheld. The statute does not ■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

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., as 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 óf the court of sessions of Brie 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.