(dissenting). The defendant kept a restaurant at No. 632 Eighth avenue, New York City. Two inspectors of the department of agriculture of this state entered this restaurant and ordered meals. With the meals they were served with “oleomargarine.” In the pantry of the restaurant they found a tub of the same substance that was served to them, which was marked “oleomargarine.” A chemist called on behalf of the plaintiff testified that, upon analysis, he found the substance to be “oleomargarine,” and that it was colored. The inspectors did not order butter, and there is no evidence that the “oleomargarine” was served to them as butter. The sale of “oleomargarine,” either in its natural state or colored, as “oleomargarine,” is not illegal in this state. People v. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. Rep. 534; People v. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. Rep. 34; People ex rel. McAuley v. Wahle, 124 App. Div. 762, 109 N. Y. Supp. 629. Where “oleomar*1078garine” is sold in imitation or in semblance of natural butter, its sale may be prohibited in order “to prevent fraud on purchasers and consumers.” People v. Biesecker, 169 N. Y. 53, 56, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. Rep. 534. In order to make one liable for the penalty imposed for the violation of this statute, the burden is upon the plaintiff to establish by competent evidence that the “oleomargarine” was sold in imitation of natural butter. The evidence presented in the trial of this action was insufficient to establish this fact.
The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.