This action was brought to recover a penalty for selling adulterated milk in violation of section 22, c. 338, Laws 1893, as amended by chapter 101, Laws 1900. Section 22 provides that “no person shall sell or exchange or offer or expose for sale or exchange any unclean, impure, unhealthy, adulterated or unwholesome milk.” Section 37 of the original act prescribed penalties for a violation of its provisions. On the 13th day of January, 1900, the defendant, by his 'agent, one Vaughan, was selling milk about the city of Rochester. Two inspectors in the employ of the department of agriculture of the state made a lactometer test" of the milk in a small peddling can containing about six quarts, and immediately thereafter caused it to be thoroughly stirred, and then took two samples therefrom, sealing them up, as required by the statute, and immediately delivered one to the agent of the defendant who was peddling the milk and the other to the state chemist. A subsequent chemical analysis of this milk delivered to the chemist showed that it was adulterated, within section 20 of chapter 338, referred to, and which defines adulterated milk. The analysis showed that the percentage of water was 88.56 and of solids XX.44. The question was submitted to the jury as to the fairness of the taking of the samples of milk. The witness Vaughan, who was the agent of the defendant, testified that he was delivering the milk to the defendant’s customers when the samples were taken by the inspectors, and that he continued to do so thereafter. The two inspectors testified, as to the manner in which the samples were taken, that one of them requested Mr. Vaughan to stir the milk thoroughly, which he did, and, after this was done, the milk Composing the samples was poured in the bottles. Vaughan testified that he stirred the milk “good” before starting on his trip that morning, but had no recollection of just how the milk was taken for the samples. There was no other proof given upon this subject, and the correctness of the analysis of the chemist was not impeached. There was, therefore, no question óf fact from this evidence to be submitted to the jury as to the fairness of the samples taken. While this action is to recover a penalty, it is still a civil action, and, if the evidence is undisputed, or at least is not fairly susceptible of an inference against the positive testimony of the witnesses, there is no question of fact to be submitted to the jury. It has been held that even the credibility of a party when his evidence is explicit, and without any suspicion or unusual circumstance tending to show its improbability, doeá not inflexibly require the submission of the case to the jury. Hull v. Littauer, 162 N. Y. 569, 57 N. E. 102. We appreciate that in several cases the question of the fairness of the sample was submitted to the jury, and that ordinarily, in actions of this character, that question is one of fact. But in each of those cases there was some independent evidence tending to impeach the fairness of the sample.
When milk is delivered by the producer “for manufacture, sale, or shipment, or from a milk vender who produces the milk which he sells,” and it is designed to prosecute such producer, the statute provides for taking a sample of the “mixed milk of the herd of cows” from which the milk claimed to be adulterated was drawn; that is, the statute aims to prevent offenses by the original producer, and also
In the Wiard Case, 61 App. Div. 612, 69 N. Y. Supp. 1142, the decision was based upon the fact that the delivery of the milk was to a single purchaser. Eight cans of the milk had been taken by the producer to the railroad station, and the sample tested was from only one of these cans. That sample was compared with a sample from the herd. It might well be that no fair comparative test could be made of a sample from a distinct part of the milk with the mixed milk of the whole herd. In the present case the peddler was engaged in selling milk from the smaller can when apprehended by the inspectors. The sample was taken from the can out of which he was selling the milk. The peddler may have a dozen cans of milk on his wagon, or he may have disposed of the greater part of it. The reason for mixing the entire milk together does not obtain in his case, for two reasons: The milk is not to be tested with that from the herd, and it would not be feasible to do so, for a part may already have been sold by him, and the mixing would be impracticable or impossible. If the milk he has in the can from which he is selling is stirred properly, and proves to be
Upon the trial of this action, and under the objection of the plaintiff, the defendant was permitted to show by the defendant and his wife that they had not tampered with this milk. We think this evidence was incompetent. If the fairness of the sample or the correctness of fhe analysis had been impugned in any way, the evidence might be competent as bearing upon either of those questions, but it is not permissible in and of itself, and without any other proof attacking the plaintiff’s case, to raise a question of fact, and thus secure a submission of the case to the jury. If testimony of this character is to be received, then the purpose of this salutary statute will be thwarted. If this rule obtains, and the sample shows the milk very badly adulterated, containing water largely above the margin prescribed by the statute, the defendant may always make a question of fact by stating that he or those in charge of the milk had not interfered with it. The offense at which the statute aims is selling or exposing for sale adulterated milk, and the statute has defined what constitutes adulteration. The only requisite to a cause of action is proof of a sale of this kind. People v. Kibler, 106 N. Y. 321, 12 N. E. 795. The' injurious effects which may result from drinking impure milk, the difficulty in detecting its impurities by the customers, the enormous extent to which it enters into the food supply, and the temptation to adulterate it render it essential that the purpose of the statute be adhered to somewhat inflexibly by the courts. In' the present case, Zuber, who furnished the milk to Laesser, may have added water or some ingredient to the milk, so that the testimony of the defendant or his wife proves nothing. And yet the defendant, though innocent, is amenable to the payment of a penalty if he sells milk which comes within the condemnation of the statute. Milk sold throughout a city may often change hands several times before reaching the consumer, and it would impair the efficiency of the statute to allow the last seller to be exonerated by swearing to his own honesty. It would likewise create confusion and uncertainty to permit each person who has sold the milk to exculpate himself by proof of this land unless there is some evidence, or some reasonable inference, that the samples were unfairly taken, or the analysis is unsatisfactory. We are aware that proof of this kind has been given in actions for penalties for delivering impure milk to a cheese factory or creamery, as has been stated; but a different method obtains in a case of that kind, as samples must be taken from the herd of the producer, and the statute minutely provides how this shall be done, and seems to imply that it may be shown that such milk “was just as it came from the cow’’ when delivered to the factory. Milk, however, is delivered about the cities by peddlers', and not producers of the milk, and the feature of the statute applicable to dairymen would not be practicable as applied to these peddlers. It appeared on the trial that the milk was obtained from one Zuber, who delivered it at the station of the New York Central & Hudson River Railroad Company in Rochester. The defendant was permitted to show that no herd sample of Mr. Zuber’s milk was taken. This evidence was objected to, and an exception taken. We think the evi
The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.
WILLIAMS and HISCOCK, JJ„ concur. McLENNAN, J., dissents in an opinion. DAVY, J., not voting.