The sale of oleomargarine as such is not unlawful, and could not be prohibited without an invasion of constitutional rights. ( People v. Marx, 99 N.Y. 377; People v. Meyer, 44 App. Div. 1; Peopleex rel. McAuley v. Wahle, 124 id. 762.) Oleomargarine and dairy butter possess certain qualities, inherent in the articles themselves, which are common to both.
It was held in People v. Arensberg ( 103 N.Y. 388) that the manufacture of an article designed simply to take the place of butter is not an offense, and that "the vital point of the alleged crime is the manufacture and sale of an article which is an imitation and semblance of butter, and so is calculated to deceive, and indicates a deceptive purpose, immediate or ultimate." Having these cases in mind, we decided, in People v. Meyer ( 44 App. Div. 1), that in order that the express prohibition contained in section 26 "shall be deemed constitutional, it is essential to construe that prohibition with the remainder of the section as forbidding only the manufacture and sale of oleomargarine when it is manufactured in imitation or semblance of natural butter." The court dismissed the complaint in the present action on the ground that the plaintiff had failed to show "that the substance offered for sale by the defendant was an imitation of natural butter.