I think the judgment should be reversed. There was a conflict in the evidence as to whether the defendant informed the agents of the State that the butter sold was renovated butter, and, as said in the prevailing opinion, that question of fact has been determined in favor of the defendants. The trouble is, in my judgment, the case was submitted to the jury on a wrong theory, and the effect of that *672submission was to emasculate the statute. After telling the jury the words must he on the tub so that they can be “ plainly seen tiy the purchaser,” he continues, “ or, in default of that, a statement must be made by the seller-to the purchaser prior to the purchase that the material which is being sold is renovated butter.” Again he states, “ the courts seem to hold that even if the express provisions of the statute are not complied with, yet if equivalent precautions are taken by the storekeeper so that the purchaser may not be deceived, then the statute is substantially complied with. So in this case the question for yon to determine is whether or not the defendants so acted as to render imposition upon the purchaser impossible.” And further along: “Were statements made to the purchaser before the sale so that the purchaser could not be deceived as to what he was buying? Was he told before the sale that what he did purchase was renovated butter ? In short, was deception of any kind as to the material which was being sold to the purchaser attempted or accomplished?” And nearly at the close of the charge the court stated: “ That is' a question of fact for you to determine; whether a deception was accomplished so that the men going to this store bought this butter not knowing and not being told that it was renovated butter, and without such a mark being upon the tub as in the absence of oral warning would have given him that information.”
The effect of this. charge was to inform the jury that if the defendants told the purchaser that this was in fact renovated butter they were absolved even though there had been no compliance with the statute at all in placing upon the tub the words of the statute. If this rule is to obtain, then in every instance the seller of process butter will claim that he told the purchaser the kind of butter that was being sold, and there will be no marking of the packages at all.' This wholesome requirement of marking the tub or package will be done away with and the purpose of the statute effectually destroyed. An honest dealer will not find it irksome or onerous to mark his tub or package of renovated butter in accordance with the statute. We are not called upon to impair the force of the law to shield the tricky or dishonest vendor of this substitute for genuine butter.
The plaintiff’s counsel excepted to the statement of the court *673“ that if an oral warning was given by the storekeeper to the purchaser that the article sold was renovated butter, that warning was in itself a sufficient compliance with the statute and to whatever the court said on that subject.”
I think this exception was sufficiently explicit, because the whole scope of the charge had been that an oral warning was sufficient, connected with the statement that the statute was designed to prevent imposition or fraud. That was the purpose of the statute, but the method of accomplishing that purpose, prescribed by the statute itself, is by marking the tub or package plainly and visibly to the purchaser with the words “ Renovated Butter.”
I think the case of People v. Mack (97 App. Div. 474) was properly decided, although some statements made in the opinion not necessary to the decision I do not assent to.
Kruse, J., concurred.
Judgment affirmed, with costs.