185 A.D. 816 | N.Y. App. Div. | 1919
Lead Opinion
This is an action by the Commissioner of Agriculture of the State of New York, pursuant to the provisions of section 55 of the Agricultural Law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], added by Laws, of 1913, chap. 408, as amd. by Laws of 1915, chap. 651), to collect, for the benefit of the defendant, appellant, the amount of an indebtedness owing to it by the defendant Israel for milk and cream sold and delivered to him. Said section of the Agricultural Law renders it unlawful for any person, firm, association or corporation to buy milk or cream within the State from producers for the purpose of shipping it to any city for consumption or for manufacture unless duly licensed therefor and unless the business be regularly transacted at a designated office or station within the State; and it is therein provided that a license shall not be issued for such purpose unless the applicant shall file with the application a good and sufficient surety bond in a sum not less than $5,000 or shall be relieved from such requirement as therein provided, and that the bond shall run to the Commissioner of Agriculture in his official capacity and shall be conditioned for the faithful compliance by the licensee with the provisions of the Agricultural Law, as thereby amended, in which said section 55 is found, and for “ the payment of all amounts due to persons who have sold milk or cream to such licensee, during the period that the license is in force.”
The defendant Israel was desirous of engaging in the business of buying milk and cream from producers for the purpose of shipping it to the city of New York for consumption and to that end filed with the Commissioner of Agriculture his bond dated August 30, 1915, with the defendant Globe Indemnity Company as surety, in which it is recited that he had
The statute provides that upon default by the licensee “ in the payment of any money due for the purchase of milk or cream, * * * the creditor may file with the Commissioner of Agriculture * * * a verified statement of his claim,” and that after ninety days from the termination of any license period the Commissioner shall bring an action to determine the amount due each such creditor and that all creditors and the surety on the bond of the licensee and the licensee shall be parties, and that the judgment recovered therein shall be enforced ratably for the creditors against the surety on the bond. No other creditor filed a verified statement of claim with the Commissioner.
The evidence is uncontroverted. The complaint has been dismissed on the theory that the defendant, appellant, was not a producer of milk within the provisions of said section of the Agricultural Law. The defendant, appellant, is a domestic corporation and was incorporated on the 1st of April, 1899, by farmers who were milk producers residing in the vicinity of Roxbury, N. Y. At that time the farmers, many of whom were obliged to carry the milk several miles, were receiving only one and a half cents per quart for milk. The chief industry in the town of Roxbury, which is in Delaware county, was the production of milk for the New York city market. The company was organized for the purpose of enabling the
If that part of the statute relating to producers were to be construed strictly and technically, doubtless it might be held that the defendant, appellant, was not a producer of milk; but I am of opinion that it should be liberally construed to accomplish the purpose intended by the Legislature, which was to secure to those engaged in dairy pursuits pay for the milk and cream sold to a licensee to be consumed or manufactured in a distant city, and that such protection may be
It follows that the findings of fact and conclusions of law inconsistent with these views should be reversed and appropriate findings and conclusions in accordance therewith made, and the judgment should be reversed, with separate bills of costs to appellants and judgment granted in' favor of plaintiff, appellant, with costs against the principal and surety on the bond.
Dowling and Smith, JJ., concurred; Page and Shearn, JJ., dissented.
Dissenting Opinion
If the Cold Spring Co-operative Creamery Association were merely an unincorporated association of farmers for the co-operative marketing of the milk produced by each member, or if it were incorporated under the Membership Corporations Law, I could" accept the conclusion of the majority of the court that it was a producer of milk within the purview of section 55 of the Agricultural Law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], added by Laws of 1913, chap. 408, as amd. by Laws of 1915, chap. 651). This association, however, was incorporated under and by virtue of the Business Corporations Law, and declared by its certificate of incorporation to be formed for the purpose of owning and operating a creamery and conducting a general creamery business, and for the purpose of purchasing, manufacturing, selling and dealing in milk, cheese and other dairy products, with a capital stock of $5,000. It appears from the by-laws of the association that the stockholders are not limited to farmers producing milk, but that "any person directly interested in agricultural pursuits may become a stockholder. Nor is the buying of milk limited to purchases from stockholders, but the association is expressly authorized to accept milk from any person
In my opinion, this business corporation, engaged in the business of buying and selling milk, does not come within the letter or spirit of section 55 of the Agricultural Law. This would seem to be clear from the language used, that “ no person, firm, association or corporation, shall buy milk or cream within the State from producers for the purpose of shipping the same * * * ” without obtaining a license and giving a bond as therein provided, conditioned “ for the faithful compliance by the licensee with the provisions of this chapter, as hereby amended, and for the payment of all amounts due to persons who have sold milk or cream to such licensee, during the period that the license is in force.” Evidently the term “ persons who have sold ” refers to those to purchase from whom the license is issued, and that is, “ producers.” The obvious meaning of the words producer of milk is one who keeps cows for the production of milk for market or for sale or exchange. (See Agricultural Law, § 31, as amd. by Laws of 1910, chap. 216.) That the Legislature did not intend that this section 55 should be given the broad construction of the prevailing opinion appears conclusively from a history of the section. As enacted in 1913 (Laws of 1913, chap. 408) it read, that “ no person, firm, association or corporation, shall buy milk within the State for the purpose of shipping * * * ” without obtaining a license entitling the applicant “ to conduct the business of buying milk from dairymen.” The Attorney-General gave an opinion, dated February 24, 1915, defining the word “ dairyman ” to mean not alone one who keeps cows for the production of milk, but also a man who sells milk, and hence that the latter was entitled to the protection of the provisions of section 55 of the Agricultural Law. (Matter of Construction of Agricultural Law, §§ 56-61, 3 State Dept. Rep. [Official] 423, 424.) Immediately after the giving of this opinion, section 55 was amended by chapter 651 of the Laws of 1915, by inserting “ from producers ” in the first sentence, and substituting the word “ producers ” for “ dairymen ” in the other portion above referred to, and otherwise amending the section to clear up certain ambiguities which had been pointed out in the opin
Shearn, J., concurred.
Judgment reversed, with separate bills of costs to appellants, and judgment granted in favor of plaintiff, with costs against the principal and surety on the bond. Order to be settled on notice.