The respondents' contention seems to be this: That a lien effective against Hughes would underlie the property interests of his grantor. If so, it would subordinate the purchase-money mortgage that Hughes gave back for part of the purchase price. The statute (Laws 1897, c. 418, § 3) provides that:

"A contractor, subcontractor, laborer or material man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or his agent, contractor or subcontractor, shall have a lien," etc.

As stated, the Belle Terre Estates was not consenting that the material be furnished to it as owner of the land, but to Hughes as the purchaser, and so it was furnished. The lienors did not regard the Estates as the owner at any time, nor did they, when the notice of lien was filed, seek to bind its interests, upon the theory of consent or otherwise. The liens were not filed against any interest save that of Hughes, although the supplementary notice states. that the "Suburban Construction Company is said to have acquired the interest of said Hughes within a short time." It is under such notice that a lien against the interest of the Construction Company is asserted, upon the theory, as I understand, that such company is the Belle Terre Estates corporation, and that the latter company consented to the construction and thereby subjected the property to the lien.

[4] Although the Construction Company paid upon purchase $15,000 in cash, from which Hughes could have paid the debts or diligent creditors presumably collected the same, the plaintiffs and Yarrington had not then even filed notices of lien, but abided until the present notices were filed, in which they ignored all interests save that of Hughes, although the deed to the Construction Company was on record. The notices are defective in several respects. The agreed price for plaintiff's material is not stated, but the amount unpaid is stated as the agreed price. But this disregard of what had been paid and other omissions are unimportant, relatively to the failure to state the kind of labor or materials.

[5] The notice is that the parties "have and claim a lien for the principal and interest of the value and the agreed price of the labor and materials hereinafter mentioned upon the real property improved and to be improved and upon such improvement hereinafter described: * (1) Labor performed, $200. (2) Materials furnished $5,759.26." The Yarrington notice is similar. Here is no description of labor or materials. Toop v. Smith, 181 N. Y. 283, 73 N. E. 1113; Id., 182 N. Y. 509, 74 N. E. 1126.

* *

[6] Notwithstanding such adverse decision, the respondents' counsel in vain suggests that the statute as amended in 1897 omits the specific language of the act of 1885 as to the nature of the services and character of materials, and also urges that the Belle Terre Estates knew what the work was and what was furnished, as if that cured the defect. But the statute should not be construed to mean one thing to whomsoever knowledge or notice can be attributed, and something else to the uninformed. The present

notices state no more than that the persons have contributed certain values in labor and material to the land described. The nature of the labor and material cannot be inferred, even by a statement of its use or adaptation, as was done in some instances cited by the respondent. These notices, operating retroactively, have been allowed to override the rights of a purchaser for value, and to go. back to a remote sale of the property, and to be construed to cover labor and work which the earlier vendor stipulated that his vendee should do in the use and improvement of his property.

The plaintiffs have reached a favorable conclusion by a long and circuitous way, but no single fact or group of facts justify the decree, which should be reversed, and a new trial granted; costs to abide the final award of costs.

HIRSCHBERG and RICH, JJ., concur. BURR and CARR, JJ., concur, upon the ground that the notices of lien were defective.

(Supreme Court, Appellate Division, Second Department. October 4, 1912.) THEATERS AND SHOWS (§ 9*)-MOVING PICTURE SHOWS-ADMISSION OF INFANTS EVIDENCE.

In a prosecution for violating Penal Law (Consol. Laws 1909, c. 40) § 484, by admitting children under 16 to moving picture shows, the evidence justifies conviction, where there was no suggestion that any inquiry was made as to the age of two boys, 9 and 11, although an inquiry was made as to a third boy, who stated he was 16.

[Ed. Note.-For other cases, see Theaters and Shows, Cent. Dig. § 9; Dec. Dig. § 9.*]

Appeal from Court of Special Sessions of City of New York. Santoro Trippi was convicted of admitting minors to a moving picture show contrary to statute, and he appeals. Affirmed.

Argued before HIRSCHBERG, BURR, THOMAS, WOODWARD, and RICH. JJ.

Thomas O. Conti, of Brooklyn, for appellant.

James C. Cropsey, Dist. Atty., and Hersey Egginton, both of Brooklyn, and Harry G. Anderson, Asst. Dist. Atty., of New York City, for the People.

WOODWARD, J. The defendant was charged with a violation of section 484 of the Penal Law (Consol. Laws 1909, c. 40), in that he admitted certain children, unaccompanied by parents or guardians, to his moving picture show, contrary to the provisions of the statute.

There is no dispute about the facts. The defendant admitted three boys, each one of them under the age of 16 years, upon their purchasing tickets. There was some evidence that the defendant asked the older of the three boys, and the one who purchased the tickets, how old he was, and that the boy replied that he was 16; that he was *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

16 "last week." But there is no pretext that there was anything said about the ages of his two companions, who were 9 and 11 years of age, respectively, and the boy who claimed to be 16 years of age was, in fact, only 14.

The statute forbids permitting children under 16 to frequent these places unless accompanied by a parent or guardian, and, if it should be assumed that it was an excuse for the violation of the statute that the child falsely declared his age, the case now before us does not come within the requirement, for there is no suggestion that any inquiry was made as to the two younger boys, and there is no suggestion that there was anything about their appearance to indicate that they were older than their ages as established by the evidence.

The judgment appealed from should be affirmed. All concur.

(152 App. Div. 614.)

PEOPLE v. GUITON et al.

(Supreme Court, Appellate Division, Third Department. September 27, 1912.) 1. FOOD ( 1*)-OLEOMARGARINE-POWER TO REGULATE SALE.

The state can prevent sale of oleomargarine as butter, but not as oleomargarine.

[Ed. Note. For other cases, see Food, Cent. Dig. § 1; 81.*]

Dec. Dig.

2. FOOD (§§ 1, 8*)-OLEOMARGARINE-SALE-STATUTORY REGULATION.

Agricultural Law (Consol. Laws 1909, c. 1) § 38, which prohibits manufacture of oleomargarine in imitation or resemblance of natural butter, is a valid police regulation, and prohibits a manufacturer from selecting ingredients in such manner as to designedly make his product a closer imitation of natural butter.

[Ed. Note. For other cases, see Food, Cent. Dig. §§ 1, 7, 8; Dec. Dig. §§ 1, 8.*]

Smith, P. J., and Houghton, J., dissenting.

Appeal from Trial Term, Albany County.

Action by the People of the State of New York against John J. Guiton and another. Judgment dismissing the complaint (73 Misc. Rep. 408, 133 N. Y. Supp. 353), and the People appeal. Reversed, and new trial granted.

Argued before SMITH, P. J., and KELLOGG, HOUGHTON, BETTS, and LYON, JJ.

Thomas Carmody, Atty. Gen., for the People.

Breed, Abbott & Morgan, of New York City (William C. Breed and Dana T. Ackerly, both of New York City, of counsel), for respondents.

JOHN M. KELLOGG, J. Oleomargarine is composed of approximately 50 per cent. of oleo oil derived from beef fat, 10 to 20 per cent. of neutral oil pressed from hog fat, and 10 to almost 20 per cent. of cotton seed oil. The other constituents are cream or butter and salt, of which there would be, depending upon the per

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

centages of the neutral and cotton seed oils used, from 10 to 30 per cent. The other constituents are churned with the cream or butter, and the finished product is commercial oleomargarine, which, chemically considered, is the equivalent in all respects of butter, with a little larger percentage of butter fats.

[1] Oleomargarine has been a subject of frequent litigation, and it is unnecessary and unprofitable to attempt to summarize the various decisions. It may be considered as established that the mere fact that it is a good substitute for butter and is used in place of it forms no legal objection to its manufacture or sale. Every one who desires to purchase oleomargarine, as such, has the right to purchase it, and the state cannot interfere with its being put upon the market and sold for just what it is. It is also established that the state may prevent the sale of oleomargarine as butter, and may regulate its sale in such manner as will prevent deception in its use. It is unfair trade to sell oleomargarine to those who want butter, and thus cheat them in the product furnished. While the manufacturer of oleomargarine has the right to make and sell it as such, the person who desires butter upon his table three times a day has the legal right to know that he is purchasing butter in fact, and not some substitute. The farmer who manufactures dairy butter must submit to an honest competition with oleomargarine, as oleomargarine, so that those who prefer it to butter, may be supplied. But he has the legal right to insist that oleomargarine shall not be sold as butter, and that those who desire his product shall not be furnished with oleomargarine by being induced to believe that it is butter.

The state is formed for the benefit of its people, so that its laws may protect the person, property, and personal rights of the citizens, and, to protect the right of all, it is necessary that some infringement be made upon the natural rights of the few. Protection to the public necessarily means restraint upon some. The real function of government is the protection of its citizens, and the promotion of the public health, safety, welfare, and convenience, and that function is called the "police power." It is said the police power of the state cannot well be defined, and that it is not safe to attempt abstractly to place a limit upon it. Changed circumstances and conditions from time to time make necessary and proper its exercise, and it may properly result that the property and the personal rights of individuals are interfered with, circumscribed, and limited. The welfare of the many in a proper case may bring about an injury to the few.

Laws have been passed which, if observed, prevent in large measure the sale of oleomargarine to persons desiring butter, and the manufacturer of oleomargarine is concededly hampered by the requirements as to the manner of its packing, the way in which it shall be stamped, the notice at the public table and at the grocery store that oleomargarine is in fact furnished. These provisions, perhaps, make it expensive and inconvenient for the manufacturer and necessarily interfere with the sale of his product; but the in

terference results from the necessity of preventing the dealer and the ultimate consumer of butter from being deceived in accepting an imitation. Laws prohibiting the sale of certain articles, except in a certain manner, are not self-executing. A desire for unreasonable gain leads evilly disposed people to transgress the law. Many times it is not enough for the Legislature to prohibit acts; but it becomes necessary to pass laws which render it difficult, if not impossible, to commit crime.

People v. Bootman, 180 N. Y. 1, 72 N. E. 505, 2 Ann. Cas. 226, is a clear illustration on this point, and is significant in interpreting the statute in question. In that case during the closed season it was illegal to have in possession certain game birds. It was contended that the game laws of the state could have no extraterritorial effect, but that the act, properly construed, prohibited the possession of the birds no matter where killed; that if the birds were killed in another state, where the killing was legal, they were private property, and the owner had the legal right to bring them. into this state at any time in the same manner as he would bring other property, not inherently dangerous or detrimental to the public health or safety; and that the statute was therefore unconstitutional. The Court of Appeals, however, held that it was within the police power to protect the game birds of the state; that as it might be difficult in a given case to prove that the bird, possessed out of season, was captured in the state, and as the accused might wrongfully claim that a bird captured in the state was cap tured elsewhere, it was a proper exercise of the police power, in order to enforce the statute for the protection of domestic birds, to prevent the possession in the state of birds killed elsewhere. For fear that the game law would not be observed as to domestic birds, the property rights of the owner of birds killed outside of the state were practically destroyed, so far as use within the state is concerned.

In this case, while perhaps the statutes are ample for the protection of those who desire to purchase natural butter and for those who manufacture it, if all were willing to observe them, nevertheless in order that all must observe the law, the Legislature may well determine that other restraint must be put upon the manufacturer and vendor of oleomargarine. If there is an exigency which, in the judgment of the Legislature, calls for a further exercise of the police power with reference to oleomargarine, and the law in question has a reasonable tendency to bring about the desired effect, its validity must be recognized, although it puts an additional burden upon the manufacturer.

The basic ingredients of oleomargarine are the beef fat and the hog fat, but the product from a mixture of such quantities of those facts would not be such that it could be sold as a substitute for butter. The texture of oleo oil is granular. It has a mottled appearance, and is not "smooth" to the taste. Cotton seed oil and butter, churned into it, smooth out the texture, give it a finish, and take out the grain. The record indicates that cotton seed oil or other vegetable