Opinion
May 29, 1936.
Appeal from Appellate Division, First Department.
Albert M. Gilbert of counsel [ Aaron S. Yohalem, Jacob Aks and Bernhard Bloch with him on the brief; Abraham M. Davis, attorney], for the appellant.
Robert P. Beyer, Assistant Attorney-General, of counsel [ John J. Bennett, Jr., Attorney-General], for the respondent.
Present — MARTIN, P.J., TOWNLEY, GLENNON, UNTERMYER and DORE, JJ.
The question whether the defendant's product constituted a substance in imitation of butter or a substance similar to oleomargarine should have been submitted to the jury as an issue of fact. Furthermore, testimony offered by the defendant tending to show that its product was not a "substance in imitation or semblance of butter" nor a "similar substance" to oleomargarine (Agriculture and Markets Law, § 59) was erroneously excluded by the trial court.
The determination of the Appellate Term and the judgment of the Municipal Court should be reversed and a new trial granted, with costs to the appellant in all courts to abide the event.
Determination appealed from and judgment of the Municipal Court unanimously reversed and a new trial granted, with costs to the appellant in all courts to abide the event.