
    Bernard Friedgood, Plaintiff-Appellant, v. George C. Kline, Defendant-Respondent.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Damages: Limitation of liability to natural and proximate consequences — Proximate or remote consequences of breach of contract — Statutory penalties recovered: Particular contracts and relations — Contracts for sale or purchase of goods — Breach by seller — Breach of warranty — Statutory penalties and costs.
    Where defendant, a wholesaler, sold to plaintiff, a retailer, adulterated vinegar in bottles labeled “ Pure Cider Vinegar ” and the State recovered a penalty against plaintiff for a violation of the Pure Food Law in selling one of said bottles, the wholesaler is liable to plaintiff for the amount of the recovery against him as damages within the contemplation of the parties.
    Plaintiff having notified defendant and given him an opportunity to defend the action for the penalty is also entitled to recover his costs and counsel fees in defending said action.
    Appeal from a judgment in favor of defendant, entered in the Municipal Court of the city of ¡New York, eighth district, borough of Manhattan.
    Nathan Bardach, for appellant.
    James F. Fitz Gerald, for respondent.
   Bijur, J.

Plaintiff, a retailer, bought from defendant, a wholesaler, vinegar in bottles labeled Pure Older Vinegar.” In fact it was adulterated. Plaintiff sold one of these bottles, and was, in an action brought by the State, fined $100 penalty, and $20 costs for a violation of the “ Pure Food Law.” The present action is brought to recover the amount of this fine and costs, pins $25 counsel fees incurred in defending the previous action.

The judgment below in favor of defendant was rendered on the theory that the damages were not within the contemplation of the parties, that the cause of action arose out of a violation of the law, and that, therefore, it would be against public policy to permit a recovery.

Defendant, however, was both constructively and actually familiar with the law of this State, and was well aware of the risk which plaintiff innocently ran by _reason of the false representation made, or implied warranty involved, in the contract of sale. Thus the fine, with its attendant expenses, to which plaintiff innocently became liable, was within defendant’s necessary contemplation. Hecla Powder Co. v. Sigua Iron Co., 91 Hun, 429, 4-32-434.

The costs and counsel fee are clearly recoverable, particularly as plaintiff notified defendant and gave him opportunity to defend the action brought by the State. Whitney v. National Bank of Potsdam, 45 N. Y. 303, 305; Char-man v. Hibbler, 31 App. Div. 477.

The cause of action against defendant does not arise out of a violation of law by plaintiff, but out of a breach of a contract.by defendant. The case of Ilecla Powder Co. v. Sigua Iron Co., supra, arose under similar circumstances.

Judgment reversed and new trial ordered, udth costs to appellant to abide the event.

Seabuky and Guy, JJ., concur.

Judgment reversed and new trial ordered.  