
    The People of the State of New York, Appellant, v. Barnard Rickard, Respondent.
    
      Adulterated milk—penalty for its sale — evidence to impeach a test of a sa7nple of the milk.
    
    Where, in an action by The People of the State of New York to recover a penalty for the sale of adulterated milk by the defendant, it appears that the defendant delivered to a creamery a can of milk which had remained all night in the can, and th'at when delivered the milk was stirred up in the can and two sample bottles were taken therefrom, one of which was delivered to the defendant and the other kept by the plaintiff and subjected by it to a chemical test which showed that the milk was considerably below the statutory standard in butter fats and solids, the defendant should be allowed to show that the milk in the bottle delivered to him, when tested by the Babcock test, which was, so far as appeared, as accurate as any other test, showed a much higher percentage of butter fats. Such evidence is admissible as bearing upon the question . whether the milk taken from the can and feted by the plaintiff was a fair sample of all the milk therein.
    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 Delaware on the 9th day of October, 1899, upon the verdict of a jury, and also 'from an order entered in said clerk’s office on the. 9th day of October, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      L. W. Baxter, for the appellant.
    
      L. F. Raymond, for the respondent.
   Parker, P. J.:

This action is brought to recover a penalty from the defendant for selling adulterated milk to a creamery in Delaware county, on the 11th day of February, 1898. From the plaintiff’s evidence it appeared that upon the morning of that day, the defendant delivered to the creamery a forty-quart can of milk that had been milked the evening before and had stood all night in such can; that when delivered such milk was stirred up in the can and a sample taken therefrom and put into two small bottles, one delivered to defendant, and one kept by the plaintiff from which a chemical test was made; that the milk so tested fell considerably below the standard required by statute in butter fats and in solids, and overran in the percentage of water thereby allowed.

The defendant gave some evidence tending to show that the milk was not thoroughly stirred in the can when the sample to be tested was taken therefrom; and also was allowed to show that the milk in the bottle left with him showed, by the Babcock test, a percentage of three and twenty-two-one-hundreths of butter fats. By the chemical test made by the plaintiff the milk in the bottle retained by it showed only two and sixty-one-one-hundreths per cent of butter fats.

The jury were instructed by the court that if the milk in the bottle tested by the plaintiff was a fair sample of all the milk in the can delivered by the defendant, and if that test was correctly made, then the defendant had sold adulterated milk and was liable for the penalty sought to be recovered.

This charge was not excepted to by plaintiff, and it seems to be a correct statement of the law controlling the case.

. The jury .found a verdict for the defendant, and from the judgment entered thereon, and from the judge’s order denying a new trial, this appeal is taken.

The appellant complains that it was error to allow, under its objection, proof that the milk in the bottle left with defendant showed a percentage of three and twentyrtwo-one-hundreths butter fats by the Babcock test.

Its argument seems to be that the accuracy of its chemical test can be discredited only by a chemical test. The decisions to which we are referred by the appellant’s counsel do not sustain that proposition, and I have not been able to find any that does. But it is not necessary to decide that question here, for, in my opinion, such evidence was admissible as bearing on the question whether the milk taken from the can was a fair sample of all the milk in the can. That milk had stood in the can over night, and confessedly the cream, containing the greater part of the butter fats, had risen to the top. Whether by stirring it up the cream could be so thoroughly mixed, and all the milk therein so completely restored to its natural condition that' a sample taken would fairly show upon a chemical test thereof the real percentage of solids, fats and water contained in the whole can, was a question of fact for the jury to determine from the evidence before them.

If a test of the milk in one bottle did not correspond with a test of the milk in the other, it would seem that the sample taken was not to be relied upon as a fair sample of the whole ; and the case does not disclose that the Babcock test is not as accurate an one by which to ascertain the butter fats in milk as any other test. The Babcock test is a well-known and universally accepted method of ascertaining the butter fats in milk; and if the butter fats in the one bottle exceeded those in the other by so large a figure as appears in this case, it was a fact to be submitted to the jury to aid them in determining whether a sample taken from the can which would show so great a difference when divided into two parts was a fair sample of the whole can.

For this reason, I conclude that it was not error to receive the evidence complained of.

Upon the whole case "we cannot say that the evidence does not warrant'the conclusion to which the jury seem to have arrived, that the sample taken was not a fair one of all the milk in the can ; and, therefore, the verdict must be sustained.

All concurred.

Judgment and order affirmed, with costs.  