I think the beverage was adulterated and misbranded within the meaning of section 200, subdivision 10 and section 201, subdivision 11. The jury could have found that the beverage was misbranded because the label failed to disclose to the purchaser that the coloring was artificial and they could have found that the beverage was adulterated because the coloring used was designed to make the purchaser believe that the orange content was greater than it really was and that the beverage was better than it really was. The trial court had no right to limit the issue to the allegations of the third paragraph of the complaint. The jury could have found that the addition of the coloring matter, which added nothing to the virtue of the beverage, was designed to defraud the public. (People v. Girard, 145 N. Y. 105; People v. Schmidt, 218 N. Y. 256; Report of the Attorney-General [1906], pp. 385, 391; People v. Luhrs, 195 N. Y. 377, 384.) The statute in question seeks to protect the people, especially children, from eating and drinking harmful foods. If the defendant were straightforward, it would have specified on its label that the coloring was artificial. I think the case was for the jury.
All concur with Cbosby, P. J., except Dowling, J., who dissents and votes for reversal and for granting a new trial. Present — Cbosby, P. J., Cunningham, Taylob, Dowling and McCuen, JJ.
Judgment affirmed, with costs.