101 N.Y.S. 961 | N.Y. App. Div. | 1906
The judgment and order should be reversed'and a new trial granted, with costs to the appellant to abide event.
The action is to recover a penalty for the delivery to a cheese factory of adulterated milk contrary to the provisions of section 23 of the Agricultural Law (Laws of 1893, chap. 338, as arnd. by Laws of 1901, chap. 429.)
The milk was delivered October 30, 1903. It was claimed that it was adulterated, under the provisions of section 20 of tile law, in that it contained more than eighty-eight per centum of water or fluids and
■ 1. That the statute (§ 12, as amd. supra)' was not complied with in taking the factory sample, and it was not a fair sample.
2. That the statute (§' 12, as amd. supra) was not complied with in taking the herd sample.
There was no analysis of the duplicate samples delivered to the defendant, and the question as to the correctness of the analysis by the chemist for the People was not left to the jury. The court charged if the samples analyzed were taken as required by the statute, and were fair' samples, the People were entitled to. a verdict. The specific questions of fact submitted to the jury were:
1. Whether the statute was complied witli as to the stirring of the milk, in the case of the factory sample, and the.sample was a fair one.
2. Whether a-duplicate sample of the factory milk was delivered to the defendant.
3. Whether the statute, was complied with as to the taking of the herd sample, so far as the presence of the inspector during the entire time the cattle were being milked was concerned.
The People claimed there was no evidence to authorize the submission of any of these questions to the jury, and that the People were entitled to the direction of a verdict against the defendant.
In determining these questions we must regard the facts as settled in' accordance witli the' evidence given , on the part, of .the defendant, so far as the evidence is conflicting.
. First. As to ,the stirring of the milk before taking the factory sample, the statute (§ 12, as amd. supra) provides that the inspector before taking the sample shall request'the person delivering the milk to thoroughly stir or mix the same, and if he refuses to stir or mix the game as requested, then the inspector shall himself so stir and mix
Second. As to the delivery of a duplicate of this sample to the defendant, there seems to be little or. no conflict in the evidence. The statute provides that the inspector shall, at the time of taking the sample, take a duplicate also, seal both, and deliver one to the person delivering the milk. The inspector in this instance appears to have acted promptly in preparing and sealing the samples, and when he had them ready the defendant had gone, and he could not then and there deliver the duplicate to him. The defendant says, himself, lie drove right away "home as soon as he delivered the milk. Later in the day the inspector called at defendant’s house and left the duplicate sample with defendant's wife. She set it away and called defendant’s attention to it, and he saw it the same night. It seems to us this was a delivery to defendant of the duplicate, sufficient to comply with the law. The statute requires the delivery at the time the sample is taken, but it could not be literally so done if the defendant went away to his home, tliree miles distant, before the sample and duplicate could be prepared. It was the defendant’s fault that this provision of the statute could not be literally complied with, and lie could not take advantage, of his own fault. The inspector was not bound to follow him up at once and make the delivery. He did all that he was in any event bound to do, when he went to defendant’s house the same day and left' the duplicate with his wife for him. Ho harm came to any one. The defendant got the duplicate, and no question was made.but it was the same one prepared at the time the sample was taken. It is said that the delivery was ineffectual because the inspector, after going three miles from the factory to defendant’s- home, left the duplicate with the wife, instead of going out in the field away from the house and giving it personally to the defendant himself. The court appears
Third. As to the presence of the inspector the entire time the herd-was being milked and the sample there taken, there was a conflict in the evidence, the People claiming he was, and the defendant that lie was not. The question must, therefore, be. treated as if he was not present the entire time. The defendant and his witnesses, however, .testify that the milk from winch the herd-sample was' taken,- as it came from- the- cows,, had not been tampered With, nothing put in or taken out- of it. The analysis of this sample showed the milk better than that taken to the factory and clearly above the standard, eighty-six and four óne-hundredths per centum only of water or liquids;, thirteen and ninety^six one-hun
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.