
    The People of the State of New York, Respondent, v. Fred Frudenberg, Appellant.
    First Department,
    February 7, 1913.
    Constitutional law—police power—Sanitary Code of the city of New York, section 183 — Agricultural Law, section 47—possession of unclean milk bottles—conviction of driver for milk company for violation of Sanitary Code in collecting unwashed bottles.
    The provision of section 183 of the Sanitary Code of the city of New York, which is supplemental to section 47 of the Agricultural Law, that “no person shall use or cause or allow to be used any receptacle which is used in the transportation and delivery of milk or cream, for any purpose whatsoever, other than the holding of milk or cream, nor shall any person receive or have in his possession any such receptacle which has not been washed after holding milk or cream or which is unclean in anyway,” is not unreasonable, and is within the police power of the State.
    A driver for a milk company who collects a large number of used milk bottles, some of which have not been washed, and instead of taking them directly to a sterilizing plant provided by the company, leaves them upon a railway platform from which they are loaded upon the cars about two hours later, is properly convicted of a violation of the said provision of the Sanitary Code.
    Appeal by the defendant, Fred Frudenberg, from a judgment of the Court of Special Sessions of the city of New York, rendered against him on the 9th day of December, 1912, convicting him of a violation of the sanitary code, and also from an order entered in said court on the 29th day of November, 1912, disallowing the defendant’s demurrer to the information.
    
      George W. Alger, for the appellant.
    
      William J. Millard, for the respondent.
   Scott, J.:

Defendant, a driver for a milk company, was charged, upon information, with having in his possession and having received milk bottles which had not been washed after holding milk and were unclean.

The evidence would support a finding that defendant had collected a large number of used milk bottles, some of which had not been washed; that he had taken them to a railway station at Park avenue and One Hundred and Sixty-fourth street and unloaded-them upon the platform, where they were stacked up. About two hours later the bottles, including the unclean ones, were loaded on cars.

The milk company had a cleaning plant at Manhattan street, and the reason why defendant did not take the bottles there was that it was out of the way.

The defendant makes no question as to the facts, contenting himself with attacking the constitutionality of the ordinance, which reads as follows, the part attacked being the last sentence:

“ Sec. 183. It shall be the duty of all persons having in their possession bottles, cans or other receptacles containing milk or cream, which are used in the transportation and delivery of milk or cream, to clean or cause them to be cleaned immediately upon emptying. No person shall use or cause or allow to be used any receptacle which is used in the transportation and delivery of milk or cream, for any purpose whatsoever other than the holding of milk or cream, nor shall any person receive or have in his possession any such receptacle which has not been washed after holding milk or cream or which is unclean in any way”

The defendant urges that upon a strict construction of the section, and both sides agree it should be so construed, it is unreasonable in that it makes it an offense for the milk company to reclaim or retake its own property if some one else has violated a duty with regard to it.

I have no doubt that this strict construction is precisely what was intended by the board of health, and it fits perfectly with the Agricultural Law, to which it is merely supplementary.

Section 47 of that law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], as amd. by Laws of 1911, chap. 608) provides that “Whenever any can or receptacle is used for transporting * * -x- hailk * *, * to market for the purpose of selling or furnishing the same for consumption as human food, which can or receptacle, when emptied, is returned or intended to be returned to the person" so selling, furnishing or shipping such substance to be again thus used, or which is liable to continued use in so transporting * * * such substance as aforesaid, the consumer, dealer or consignee using, selling or receiving the milk, cream or curd from such can or receptacle, shall before so returning such can or receptacle remove all substances foreign to milk therefrom by rinsing with water or otherwise.”

The appellant concedes that there is no constitutional objection to either the statute or ordinance except the last sentence of the ordinance under which defendant was convicted.

We are of opinion that the sentence objected to is not unreasonable and is within the police power of the State. It does not deprive the milk company, appellant’s employer, of its property, but merely requires it, before accepting a bottle or other receptacle from a customer, to insist that that customer shall observe the law and wash out the receptacle. This can be done either by ceasing- to deliver milk to a customer who refuses to obey the law or by lodging an information against the persistent law breaker.

That the company had provided a sterilizing plant to clean bottles and receptacles does not seem to meet the requirements of law, especially when the bottles are not taken to the plant, but are shipped away in an unclean condition.

Both the statute and the ordinance are undoubtedly drastic, but the danger to be apprehended from the use of unclean receptacles for milk intended for human food is so obvious and so well known that drastic measures to prevent the possibility of such use are reasonable and justifiable.

The judgment should be affirmed.

Ingraham, P. J., McLaughlin, Clarice and Dowling, JJ. concurred.

Judgment affirmed.  