This action was brought to recover a penalty for selling adulterated milk in violation of section 22, chapter 338 of the Laws of 1893, *386as amended by chapter 101 of the Laws of 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 (as amd. by Laws of 19Ó0, chap. 559) prescribed penalties for a violation of these provisions.
On the 13th day of September, 1900, the defendant by his agent, one Yaughan, 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 thechemist 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 eighty-eight and fffty-six one-hundredths, and of solids eleven and forty-four onehundreths.
The question was submitted to the jury as to the fairness of the taking of the samples of milk. The witness Yaughan, 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.-Yaughan to stir the milk thoroughly, which he did, and after this was done the milk composing the samples was poured in the bottles. Yaughan 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 of 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 ho question of fact *387to 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, does not inflexibly require the submission of the case to the jury. (Hull v. Littauer, 162 N. Y. 569.)
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 quéstion 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 vendor who produces the milk which he sells,” and it is designed to prosecute such producer, the statute (§ 12, as amd. by Laws of 1898, chap. 557) 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 by any person who sells unwholesome milk. In the larger cities the great bulk of the milk is not gold by the producers. It is shipped to the city, mixed indiscriminately, and sold by peddlers from house to house. It is impossible, therefore, in the latter case to make any test of the milk to be compared with that from the herd. There is no unfair discrimination for or against any one. Whoever sells milk not up to the arbitrary standard prescribed by the statute is liable for the penalty provided by section 37 of the act as amended. Every producer, as an extra guard against unjust prosecution, may have the milk of his herd compared with that which is claimed to be unwholesome, and that privilege relates to the manner of ascertaining the quality of his milk. The statute gave no such privilege to the peddler who was not the producer, because no herd sample could be obtained. The statute was passed in view of existing conditions and must be construed in a way to be fairly adapted ‘to them.
The illustration in the opinion of Justice McLennan of the farmer whose milk is divided at a street corner is an unusual one. It may be that if the milk came direct from the producer to the peddler, and was sold by him unmixed with any other, that a fair construction of the statute would permit him to have the comparative test made with that from the herd.
*388It is to be noted in construing this statute that milk which comes from the herd is not likely to be adulterated within the statutory definition. The standard fixed is on the assumption that milk which does not cop-form to it in quality ig unwholesome and not suitable for human consumption, and we can hardly conceive of a herd of cows, whatever may be their food and however emaciated or poorly cared for they may be, whose milk product is within the condemnation of the statute. If such an exceptional instance exists it must yield to the general welfare of mankind for whose benefit the law was enacted. It is also to be understood that the lawmakers are seeking to check the sale of unhealthy milk, and in one instance provided a means for making the test, and the method there provided may not be applied to a peddler, because the conditions are not the same, and the distinction is not due to an attempt to legislate in behalf of the farmer and against the peddler.
In People v. Wiard (61 App. Div. 612) 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; 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 of impossible. If the milk he has in the can from which he is selling is stirred properly and proves to be below the standard the liability attaches. The Wiard case has no application to milk taken from a peddler.
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 *389the correctness of the 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 álways 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.)
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 kind 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 (■§ 12 as amd. by Laws of 1898, chap. 557) *390minutely 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 non-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 Mew York Central and 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 evidence was incompetent. As already suggested, the necessity of taking samples of the milk from the herd is not required where milk is delivered about the city.
This court has already held that this statute is constitutional. (People v. Hills, 64 App. Div. 584.)
The question of intent does not enter into actions of' this kind. (People v. Kibler, 106 N. Y. 321.)
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Williams and Hisoock, JJ., concurred ; McLennan, J., dissented in an opinion ; Davt, J., not voting.