
    PEOPLE v. RUSSELL.
    (Supreme Court, Appellate Term.
    May 9, 1912.)
    Food (§ 16)—Milk—Natukb and Elements of Defense.
    In an action to recover a penalty for selling adulterated milk, under Agricultural Law (Consol. Laws 1909, c. 1) § 52, evidence held, to warrant a judgment for the plaintiff.
    [Ed. Note.—For other cases, see Food, Cent. Dig. § 16; Dec. Dig. § 16.*]
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action to recover a penalty by the People of the State of New York against Thomas W. Russell. From a judgment for defendant, the People appeal. Reversed, and new trial ordered.
    Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ.
    Thomas Carmody, Atty. Gen. (Robert P. Beyer, of New York City, of counsel), for the People.
    Cahn & Nordlinger, of New York City (Emanuel S. Cahn, of New York City, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

This action is brought to recover a penalty alleged to have been incurred by section 52 of the Agricultural Law (Consol. Laws 1909, c. 1) for selling adulterated milk, as defined by subdivisions 1 and 2 of section 30 of the said law, being chapter 9 of the Laws of 1909, as amended by chapter 341 of the Laws of 1910.

The uncontradicted testimony upon the part of the plaintiff shows that the defendant served the customers in his restaurant with milk taken from the same can as were the inspected samples, which samples were shown upon analysis to contain more than the percentage of water allowed by law. The mere fact that one inspector actually saw the waiters in the restaurant delivering milk to customers, and that another inspector did not, does not negative the evidence of the first.

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