The defendant was convicted of a misdemeanor for violating section 364 of the Penal Code. He was a bartender and the evidence, in brief, is to the effect' that lie sold, as Wilson whisky, whisky from a Wilson whisky, bottle which was refilled when emptied from a demijohn underneath the bar. There was no evidence that the whisky sold from this bottle was not Wilson whisky. The learned district attorney, at the trial, stated that he was ready to offer evidence of the “taste test,” but no such proof was in fact offered, and the sole question presented by this appeal is whether subdivi- . sion 6 of section 364 of the Penal Code applies to the facts proved, and if so, whether it is constitutional. •
The statute * reads as follows : “A person * * * 6. Who knowingly sells,, offers or ’exposes for sale, any goods • which are represented in any manner, by word or deed, to be the manufacture or product of any person, firm or corporation, other than himself, unless such goods are contained in the original packages and under the labels, marks or names placed thereon by the manufacturer who is entitled to use such marks, names, brands or trade-marks, * * * is guilty of a misdemeanor.”
*639I am of the opinion that this statute does not apply to the case of a sale where the original package has, by the owner, been broken; in other words, had the bartender sold a bottle of what purported to be Wilson whisky, as originally bottled by the manufacturer, but which was not, the statute would apply to him; but having broken the original packagé — the bottle — then a sale of part of its contents, whether it were Wilson whisky or not, did not violate the statute. The language is that a sale shall not be made “unless such goods are contained in the originad packages.” Its purpose is to protect the owners of trade marks by making it a crime to sell or offer to sell goods covered by a trade mark owned by another, unless the goods when sold or offered for sale are contained in the package in which they were put up by the manufacturer and have thereon the labels, marks or names constituting the trade mark by which the manufacturer desires the goods to be known and introduced. That this is the proper construction to be -put upon this, statute was settled, so far as this court is concerned, in People v. Hoffheimer (110 App. Div. 423).
If the 'statute is to be construed in the manner set forth in the prevailing opinion, it may well be doubted whether it is constitutional, in that it confiscates a property right. (Wynehamer v. People, 13 N. Y. 378.) If the original packages are destroyed or injured to such an extent that the goods contained therein cannot be sold therefrom, through no fault of the seller, then he is prohibited from selling them as the goods of the maker which might well constitute a large part of their value. But it is not now necessary to pass upon this question, inasmuch as the statute does not apply to the facts proved.
The judgment of conviction, therefore, should be reversed and a new trial ordered.
Ingraham, J., concurred.
See Laws of 1889, chap. 45. Since amd. hy Laws of 1908, chap. 427.-^[Rep.