I dissent and vote to affirm the order sustaining the sufficiency of the complaint.
The statute under consideration plainly prohibits the sale of the product of the plaintiff except in the original container as bottled by the plaintiff if it is held out as the plaintiff’s product. The majority would read into that statute something the Legislature did not write. It would read into the statute a requirement that before there could be a violation there must be actual fraud or misrepresentation proven. As authority for such holding, it relies on the case of People v. Luhrs (195 N. Y. 377). I have come to the conclusion that that case does not make such proof mandatory.
At the outset, I wish to observe that there is no basic rule that a statute written by the Legislature may not be read literally. To the contrary it should be so read unless it is 'manifest that by so doing it would distort the intention of the Legislature. Nor do I take the position that it must be read literally merely because as so read it would not violate any constitutional provision. I do think it should be read literally if so reading it tends to carry out the intent of the Legislature.
I agree that subdivision 6 of section 2354 of the Penal Law was designed to prevent fraud. The section itself clearly so indicates and the Court of Appeals in People v. Luhrs (supra) *116held such to be the purpose. It is my view, however, that that section was directed not only to situations involving actual fraud but that it was also intended to establish safeguards which would prevent the likelihood of fraud. In other words it was intended to prevent transactions which are pregnant with fraudulent possibilities. The Legislature has the power in seeking to correct an evil to go beyond the precise coniines of the evil to be avoided so as to make more unlikely the occurrence of such evil. That was the spirit that the court in the Luhrs case found to have motivated the Legislature. This was indicated by the Court of Appeals’ statement that even if genuine Wilson whiskey had been transferred to the original Wilson bottle there was nevertheless a violation of the statute. True, the court based its finding in that case upon the tacit misrepresentation that the whiskey had been originally bottled by Wilson. But, as a practical matter, how is the buyer injured so long as he in fact gets Wilson whiskey? It was to protect against the possibility of fraud accompanied by injury, i.e., adulteration, substitution, etc., that the Legislature made such conduct a crime even if the rebottled whiskey were actually Wilson whiskey.
The statute as I see it has a twofold purpose; first, to protect the buying public and, second, to give a measure of protection to the manufacturer and owner of the tr,ade-mark. The latter purpose is clearly spelled out in the title of section 2354 — “ Offenses against trade-marks ”. A literal reading of the statute would give force to this legislative intent, i.e., with respect to the public, to assure that it is the exact unadulterated and unspoiled product of the manufacturer that is sold and, with respect to the manufacturer, that it receive the protection against the defamation of its name and product if rebottling should result in deterioration of that product. The provision that the original product be retained in the original bottle “ guarantees the quality of the article ” (People v. Luuhrs, supra, p. 385) and thus carries out one of the salutary objects of the legislative enactment. I can readily visualize the possibilities of fraud if it were encumbent upon a manufacturer to follow each bottler who uses its name and to try to detect and to prove adulteration and deterioration of its product. Protection against fraud would well-nigh be impossible in such circumstances. It is within the police power of the Legislature to provide a practical means of guarding against frauds of that nature. Unless we interpret the statute literally as written, there would be no suitable remedy for there would be “no probable chance to discover the fraud ” (People v. Luhrs, supra, p. 382). Of course, I appreciate that we can pick statements *117from the Court of Appeals opinion in the Luhrs case which would seem to indicate that there must be fraud or misrepresentation actually proven. However, the rationale of that case sustains the position that the Legislature intended, in a practical way, to prevent fraud and the possibility of the perpetration of fraud.
There is further evidence that a literal reading of the statute is required to reflect the legislative intent. The statute not only makes unlawful the sale of the rebottled products, but it also makes it unlawful to expose or exhibit such products for sale. If it were the intention that actual fraud or misrepresentation be the test of a violation, how could the mere exposure of such products without a sale constitute a violation?
Of course, the product when purchased by the defendants belonged to the defendants. They had a right to do with it what they would, but they had no right to do as they chose with the name of the manufacturer. That was expressly prohibited by the statute and I believe it to be a reasonable prohibition for the welfare of the public as well as for the protection of the manufacturer. For the above reasons, I cannot concur with the majority.
I should also comment on the request for injunctive relief. It is apparent that a violation of this statute will do damage to this plaintiff specifically, and it is also apparent that it will cause it irreparable harm—harm that cannot be compensated for in money only. The only effective relief which can be given is by way of injunction.
Likewise, I find no insufficiency in the complaint insofar as it seeks relief against the individual defendants. The allegations are sufficiently broad to connect those defendants as individuals with a violation of the statute.
Accordingly, I vote to affirm.
Yalente, Eager and Noonan, JJ., concur with Breitel, J. P.; Rabin, J., dissents and votes to affirm in opinion.
Order, entered on March 4, 1960, denying defendants-appellants ’ motion, pursuant to rule 106 of the Rules of Civil Practice, to dismiss the complaint for insufficiency, as to each of them, reversed, on the law, with $20 costs and disbursements to appellants, and the motion to dismiss the complaint for legal insufficiency granted, with $10 costs.