The evidence before the court clearly established that the defendant entered the restaurant of one Mrs. McLean at Coney Island on the 26th day of June, 1907, and announced himself as “ the butter man ; ” that Mrs.' McLean responded, “ I’ll have one tub of butter, please; ” that defendant said, “ one tub ? ” and that Mrs. McLean answered, “ yes; ” and that the defendant then went out and brought in a ten-pound package; that he left the same on the ice chest and then went to the desk and was paid a sum of money, and then left the place; that the complaining witnesses, agents of the agricultural department, then took samples of the contents of the tub and gave them over to a chemist, who pronounced them oleomargarine. It is not disputed that the contents of the tub was oleomargarine, but it is urged that the evidence does not disclose that the defendant sold it as butter. In this we believe there is no merit; the evidence shows that the defendant declared himself to *88be the “butter man,” and that Mrs. McLean ordered one tub of butter, and that what she received was not butter, but oleomargarine. There is probably no doubt of the right of. the defendant to sell oleomargarine as. oleomargarine (People ex rel. McAuley v. Wahle, 124 App. Div. 762), but in this case he appears to have represented that he was selling butter, and that the purchaser ordered butter, and that the stuff delivered was not butter. It is complained that the prosecution did not produce Mrs. McLe'an' to testify that she bought butter, but there was no dispute as to the facts as testified to by the complaining witnesses, and if it was true that she ordered and expected to receive oleomargarine, she was an available witness for tlie defendant, so that there is no particular inference to be drawn from her absence from the witness stand. ,
It is doubtless true that the statute * in terms prohibits the sale of oleomargarine, manufactured, or produced “in imitation or semblance of natural butter,” and that that, rather than deceit in the sale of the article, is the gist of the offense; but'obviously the statute f was intended to prevent the sale of oleomargarine for butter. Mow, in this case,, we have the established fact that the defendant sold oleomargarine as and for butter and that the article sold had coloring in it. A bottle containing a sample of it was put in evidence. This was'enough to justify a finding, which we must presume was made, that the oleomargarine sold for butter was actually colored to imitate butter.
The judgment of conviction should be affirmed:
Hirschberg, P. J., Jenks, Gaynor and Miller, JJ., concurred.
Judgment of the Court of Special Sessions affirmed.