
    The People of the State of New York, Appellant, v. John D. Gilmor, Respondent.
    
      Penalty for the sale, by the producer, of adulterated milk—proof is wcesswy that a sample was taken from the mixed milk of the herd of cows — taking a sample from the poorest of fifteen cans examined is unjust.
    
    A civil action brought against a producer, as distinguished from a mere seller, of milk, to recover the penalty prescribed by the Agricultural Law (Laws of 1893, chap. 338, as amd.) for selling adulterated milk, cannot be maintained without proof of compliance with section 12 of the Agricultural Law, which provides: “ In taking samples of milk for analysis * * * where the same is delivered by the producer * * the said commissioner of agriculture or assistant or his agent or agents shall within ten days thereafter, with the consent of the said producer, take a sample in a like manner of the mixed milk of the herd of cows from which the milk first sampled was drawn and shall deliver the duplicate sample to the said producer and shall cause the sample taken by himself or his agent to be analyzed. If the sample of milk last taken * * * shall upon analysis prove to contain no higher percentage of milk solids or ho " higher percentage of fat than as the sample taken (referring to the first sample), * -x- * then no action shall lie against the said producer,” etc.
    
      Semble, that where a milk wagon contains thirty cans of milk, and an inspector employed by the Agricultural Department examines fifteen cans, it is manifestly unjust for him to take samples from the poorest one of them.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of N ew York on the 18th day of June, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      Cromwell G. Maey, for the appellant.
    
      John A. Mopes, for the respondent.
   O’Brien, J.:

The action was brought to recover a penalty for an alleged violation of the Agricultural Law (Laws of 1893, chap. 338, as amd.) by offering or exposing for sale milk claimed to be adulterated within the meaning of the provisions of that law.

The plaintiff proved that on June 9, 1900, an inspector found upon a wagon at the Twenty-third street ferry thirty cans of milk which bore defendant’s mark. Although he examined some fifteen cans, he took from but one can two samples of milk, one of which lie sealed and gave to the driver and the other to a chemist employed by the department to be analyzed. The certificate of the chemist showed eighty-eight and eighty-four one-hundredths per cent of water, eleven and sixteen one-hundredths per cent milk solids and three and fifty-nine one-hundredths per cent of milk fats in the sample, whereas the standard as fixed by the act required that the component parts should be water, not more than eighty-eight per cent, milk solids, not less than twelve per cent and milk fats, not less than three per cent. It will be noticed by comparing the standard requirements with the component parts of the milk of the one can examined that the deviations from the standard were fractional as to two of the component parts, while as t'o the third — that of milk fats —- which the law says must not be less than three per cent — the percentage was in fact three and fifty-nine one-hundredths.

The question whether merely sampling one out of thirty cans was a compliance with the spirit of the statute may be doubted, because it seems as matter of'first impression to be manifestly unjust to do as the inspector here did, which was to examine fifteen cans and then take a sample from one which he found to be the poorest and confine the analysis to such sample. In People v. Wiard (61 App. Div. 612; affd., 170 N. Y. 590) it was said: “The analysis of a sample of milk taken from only part of the product delivered by the producer at any one time to a single purchaser will not afford a basis for an action for a penalty.”

Passing this point, however, we think that the learned judge at Special Term was right in dismissing the complaint upon the ground that the failure to make a second inspection at the farm of the mixed milk of the herd of cows from which the milk first sampled was drawn was fatal to recovery. Section 12 of the act (as amd. by Laws of 1898, chap. 557) provides : “ In taking samples of milk for analysis * * * where the same is delivered by the producer * * * the said commissioner of agriculture or assistant or his agent or agents shall within ten days thereafter, with the consent of the said producer, take a sample in a like manner of the mixed milk of the herd of cows from which the milk first sampled was drawn and shall deliver the duplicate sample to the said producer and shall cause the sample taken by himself or his agent to be analyzed. If the sample of milk last taken * * * shall upon analysis prove to contain no higher percentage of milk solids or no higher percentage of fat than as the sample taken (referring to the first sample), * * * then no action shall lie against the said producer,” etc.

It is admitted that no attempt was made to comply with this provision of the law, and the only question presented for our determination, therefore, is whether or not it is applicable. In that connection the first consideration is as to whether the defendant was a producer as distinguished from a mere seller of milk. Although there were upon the wagon other cans of milk, the testimony shows that the milk from the can sampled bearing the defendant’s mark came from his farm at Yails Gate, Orange county, and, therefore, the conclusion is supported that the defendant was a producer as distinguished from a mere seller.

The argument that section 12, as thus amended, is only applicable to a criminal proceeding and does not apply in an action for a penalty we think is untenable. The languageof section 12, as thus amended, is that “ no action shall lie against the said producer for violation of subdivisions one, two, three, seven and eight of section twenty of the Agricultural Law,” and subdivisions 1, 2 and 3 of section 20 refer in terms to the standards r'equired with respect to the component parts of milk which we have discussed. And section 37 provides that penalties shall be imposed for a violation by any person of the provisions contained in article 2 of the Agricultural Law, in which article section 20 is to be found.

It follows, therefore, that the disposition made by the learned judge at Special Term was right and that the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

.Judgment affirmed, with costs.  