
    The People of the State of New York, Appellant, v. John E. Salisbury, Respondent.
    
      Milk—penalty for its adulteration — defendants right to show that he had not interfered with the milk—analysis, how far eonelusive—Laws 1893, chap. 338.
    Where, in an action brought to recover a penalty alleged to have been incurred -for selling or supplying to a butter or cheese factory adulterated milk, the plaintiff has given evidence tending to show the fact of adulteration, the defendant is entitled to give evidence which indicates that there had been no physical interference with the milk after it was drawn from the cows.
    Upon the trial of such an action, it is proper for the court to charge the jury that, if they find that the analysis made upon the part of the agricultural department of the State was not made from a fair sample of the milk, they then have a right to disregard the analysis.
    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 Herkimer on the 13tli day of December, 1894, upon the verdict of a jury -rendered after a trial at the- Herkimer Circuit, and also from an order entered in said clerk’s office on the 10th day of December, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover a penalty under chapter 338 of the Laws of 1893, as .prescribed in section 37 of that statute, which provides, viz.: “ Every person violating any of the provisions of this article shall forfeit to the people of the State of New York the sum of one hundred dollars for every such violation.”
    
      Charles D. Thomas, for the appellant.
    
      J. W. Hay MU, for the respondent.,
   Hardin, P. J.:

Plaintiff’s complaint alleges that, on the 12th day of July, 1894, the defendant “ sujoplied and brought to' be manufactured to a cheese factory conducted by Henry Davis, situated and located in the town of Litchfield, Herkimer county, N. Y., adulterated milk, milk containing more than eighty-eight per centum of water or fluids contrary to and in violation of ” chapter 338 of the Laws of 1893. 'The complaint contained several counts and demanded judgment against the defendant for a penalty of $100. ■ Plaintiff relies upon subdivisions 1, 2 and 3 of section 20 of the act, which are as follows: “ 1. Milk containing more than eighty-eight per centum of water or fluids. .2. Milk containing less than twelve per centum of milk solids. • 3.- Milk containing less than three per centum of fats.”

Upon the trial the plaintiff gave evidence that the defendant was a patron of the cheese factory conducted by Davis, and of the circumstances attending the delivery of milk on the 12th of July, 1894, by the defendant, at the said factory. Davis, the proprietor of the factory, detailed the circumstances attending the delivery of two cans of milk by the defendant, and he stated that before any milk was taken out, the dipper was reached down in the milk and given a stir around to mix it, when the samples were obtained for the purpose of analysis.

Scrafford,- an agent of the Agricultural Department, was present when the sample was secured and he detailed the circumstances Under which the same was obtained, and that after obtaining the samples he states that he delivered them to Dr. Theodore Deecke, the chemist, and he also states the manner in which the milk was secured from the weigh can and the delivery of the quantity thus secured to Dr. Deecke for analysis.

Dr. Deecke was called as a witness for the People and testifies to ■the results of his examination of the milk so delivered to him. He says that the water he found from the first determination, that it contained 11.117 per cent of solidg and 88.883 per cent of water,'and that he repeated the operation the second time,- and he adds There is nothing absolutely correct and so also a chemical analysis is not; and, therefore, I repeated the process; the second showed me 11.12 per cent of solids and 88.88 per cent of water; the third time I received 11.119 per cent of solids and 88.881 per cent of water; the fat was ascertained after the milk had been evaporated.” Section 6 of the chapter referred to provides, viz.: Every certificate duly signed and acknowledged, of a chemist, analyst or other expert employed by the commissioner of agriculture, or any analysis, examination or investigation made by such analyst,-chemist or expert -with respect to any matter or product which the commissioner has authority to examine or cause to be examined, shall be presumptive evidence of the facts therein stated.”

After Dr. Deecke had given his testimony in chief as to his examination, he was extensively cross-examined, and it is not apparent that the judge at the trial improperly exercised his discretion in allowing the questions propounded to Dr. Deecke in the course of the cross-examination. It is apparent from the testimony of Dr. Deecke that the milk in question was found by him to be but slightly below the standard prescribed in the statute.

The plaintiff also called George Davis, a son of the proprietor of the factory, who testified as to the circumstances attending the obtaining of the sample for examination. When the plaintiff rested no motion for a nonsuit was made. The defendant was placed upon the stand as a witness, and he testified that the milk of the night of the eleventh of July was put in one can in a wagon near the barn, and that the milk of the morning of the twelfth of July was put into another can in the same wagon. A question was then propounded to him as follows: “ Q. From the milking of the milk on the 11th, at night until the milking of the morning of the 12th, what did you do, if anything, with the milk in the can ; the night’s milk ? ” This question was objected to as incompetent, irrelevant and immaterial, and the objections were overruled and an exception taken by the plaintiff’s counsel. The witness answered: “Nothing only what I have answered, stirred up and the cover put on.” We think no error was committed by the trial judge in receiving the answer to the question propounded. Other questions of somewhat similar purport were allowed to the defendant’s witnesses tending to show that there had been no physical interference with the milk after it was drawn from the animals. We think no error was committed in receiving such evidence bearing’upon the issue that was presented by the pleadings.

At the close of the evidence the learned trial judge determined that he would submit to the jury the question whether the sample was a fair one; and in the course of his charge he commented upon the evidence relating to that question, and at the close of his charge the defendant’s counsel asked the court to charge “ that if the jury find that the analysis was not made from a fair sample then they have a right to disregard the ■ analysis;” In responsó to that the. court observed, “-I so charge.' I have so charged in substance already.” The plaintiff’s counsel took an exception. We think .the exception presents no error.", The . principal question. involved in the case seems to have been considered by the late General Term of the fifth department in the case of The People v. Hodnett (68 Hun, 341), and we find no occasion to apply to the case in hand a different principle from that laid down in .the ¡case to.which reference has been made.

The foregoing views lead ns to the conclusion' that the verdict should be sustained.' '

All concurred.

Judgment and order affirmed, with' costs.  