People v. Abramson

This action was brought to recover a judgment for penalties for selling adulterated, milk contrary to the provisions of section 22 of the "former Agricultural Law (Gen. Laws, chap. 33 [Laws of 1893, chap. 338],as amd. by Laws of 1907, chap. 241), which is now. section 32 of the present Agricultural Law (Consol. Laws, chap. 1; Laws of 1909, chap. 9).

The defendants operated a creamery at Dunraven in the town of Middletown, Delaware county, and during the month of October, 1908, sold to G. Kotcher and J. Breadstone, wholesale milk dealers, doing business in the city of Brooklyn and New York city, 336 cans of milk of forty quarts each. The milk was adulterated by. the defendants before it was shipped by taking from each can three and one-half quarts of cream.

The defendants claimed and gave evidence tending to show that it was understood and agreed that the milk should be sold only in the State of New Jersey, and that the milk was up to *493the standard in that State, but it is undisputed that the contract was made in ¡New York, that the milk was to he shipped on hoard the cars of the Delaware and Eastern Railway Company at Dunraven, and that the purchasers were to pay the freight. It was also undisputed that each can was properly marked with the name of the purchaser, that they were transported to Weehawken, and, when they arrived there, they were taken by the purchasers to the city of New York or Brooklyn, where they were sold or otherwise disposed of. It is clear, I think, that the defendants delivered the milk to the carrier with the intention to vest the title in the purchasers, and that their title was then complete; that the purchaser could thereafter transport it to any point in or without the State; that it was at their risk, and they were Hable to pay for it, although it shquld be lost. It is also to be observed that the statute in question expressly provides that “Any person dehvering milk to any butter or cheese factory, condensary, milk gathering station or railway station to be shipped to any city, town or village shall be deemed to expose or offer the same for sale whether the said milk is delivered or consigned to himself or another.”

This being so, the question whether it would be a violation of the provisions of the Agricultural Law for a resident of this State to agree with a resident of a foreign State to deliver and sell him in "such foreign State adulterated or unwholesome milk is not in the case.

The only other question presented is whether the trial court correctly held that the sale of each can was a violation of the statute for which a penalty could be recovered.

The statute in question provides that “the sale of each one of several packages shall constitute a separate violation,” and imposes a penalty for each violation of the law. (See Gen. Laws, chap. 33 [Laws of 1893, chap. 338], § 37, as amd. by Laws of 1901, chap. 656; now Consol. Laws, chap. 1 [Laws of 1909, chap. 9], § 52.) From this language I think it is evident that the Legislature intended that there should be cumulative recoveries. I do not see how it could make that meaning plainer. This conclusion is not in conflict with the previous decision of this court in United States Condensed *494Milk Co. v. Smith (116 App. Div. 15). The recovery in that case was under a statute providing a penalty for buying or selling or having in possession marked milk cans belonging to another and allowing a recovery of a penalty “for every such violation.” (Laws of 1896, chap. 376, § 29, as amd. by Laws of 1902, chap. 482.) It was there held that the language of the statute limited the recovery in any action to each violation and that the possession of one can or more than One can was a single violation of the statute. It is well settled that a cumulative recovery will be allowed where the legislative intent in that respect appears in the language of the statute. (Suydam v. Smith, 52 N. Y. 383; Grover v. Morris, 73 id. 473; Griffin v. Interurban St. R. Co., 179 id. 438; 180 id. 538; People v. Spencer, 201 id. 105.)

It follows that the judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment unanimously affirmed, with costs.