(dissenting):
It may be that, if asked for, this case should have gone to the jury upon the question as to whether the defendant did expose for *676sale a spuriops article of food. Plaintiffs counsel, however, did not ask it, and distinctly stated' that the only violation' of the statute which he claimed was the violation of the defendant through the act of his agent. It is not fair to the trial judge ; it is not fair to the parties, after such dis'claimer, to reverse the judgment upon that ground. Nor does plaintiffs attorney ask for a reversal upon that ground. He makes no claim in his brief or on his argument that he should have gone to the jury upon that question. It is apparent that the State desires a determination of the question as to whether the act of the agent may be pleaded as the act of the'principal. The prevailing opinion of this court, however, makes .it impossible for the State to get a decision of the Court of Appeals upon that question.'
The one question upon which this appeal should be determined is the question, of pleading in this action: Can the act of the servant be pleaded as the act of the master ? The act of the clerk in making this sale contrary to law was not the act of the defendant and for it the defendant is not liable. The statute quoted in the prevailing opinion'makes-the principal liable only when the unlawful act was “suffered, .permitted or allowed”, by the principal. The defendant’s liability, therefore, does not rest upon' the rules governing the relations of principal and agent, thereby the principal is made liable not only for the authorized acts of his agent but for those within the scope of his authority. The principal is made liable only for his own act in suffering or permitting or allowing the unlawful sale by the agent. It cannot be claimed for a moment that an indictment could be sustained as against this principal by showing the act of • the agent without an allegation that the act of the agent was suffered, permitted or allowed by the principal. The cause of action cannot be proven without proof of this fact.. ■ Nor, in a penal action should the principal be charged with the act of the agent, under this statute, without a. distinct allegation that the act of the agent was suffered, permitted or allowed by the principal.
In Village of Cortland v. Howard (1 App. Div. 131) it was held in this department that inasmuch as an action for penalty was a quasi criminal action, the defendant “ should be accurately informed of the exact-charge against him.” - The same rule is stated by this department in Ithaca Fire Department v. Rice (108 App. Div. *677100). In Bacon v. Hooker (173 Mass. 554) it seems to have been held that an action of assault and battery cannot be maintained against a defendant upon proof of an assault by the defendant’s servant under an allegation of assault by defendant.
I advise an affirmance of the judgment, with costs.
Judgment reversed and new trial granted, with costs to appellant to abide event.