
    People v. Rohrs et al.
    
    
      (Supreme Court, General Term, First Department.
    
    June 19, 1888.)
    1. Judgment—Res Adjudicata—Criminal Actions and Civil Cases.
    The law oí 1885 to prevent deception in the sale of dairy products provides for punishment by fine and imprisonment, and also for a penalty of $500 for each offense. Held, that evidence that defendants had been found not guilty in a criminal prosecution for a violation of the statute is not admissible in evidence, in an action for the penalty for such violation, for want of mutuality, as the record of conviction would not have been evidence against defendants in such an action.
    3. Appeal—Waiver of Objection.
    An objection that the court erred in taking a case from the-jury, and directing a verdict for plaintiff, is not well taken when defendants, at the trial, made no claim that there was any question for the jury, but insisted that the court should direct a. verdict in their favor.
    Appeal from circuit court, New York county; Beach, Justice.
    
      The people of the state of Hew Tork sued Charles H. Rohrs and George Boldt to recover penalties for violation of Laws 1885, e. 183, §§ 7, 8, under section 19, to prevent deception in dairy products. Verdict for plaintiff by order of the court, and judgment on the verdict. Defendants appeal.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Albert Reynand, for appellants. E. B. Thomas and W. P. Quin, for respondents.
   Per Curiam.

The defendants in this action were sued to recover penalties under the act of 1885 entitled “An act to prevent deception in the sale of dairy products. ” The act provided that whoever violated its provisions should be guilty of a misdemeanor, and be punished by fine or imprisonment, and, in addition, should forfeit and pay a fixed penalty of $500. The defendants offered to prove that the defendant Rohrs had been tried for the offenses charged in the complaint in the court of special sessions, and acquitted. This offer was rejected, and exception taken. The parties to the criminal proceeding were the people, the plaintiffs in this action, and Rohrs, one of the defendants in this action. The question litigated in the criminal proceeding was whether or not Rohrs had violated the statute. It was judicially determined that he had not so done. It would seem, therefore, that the very question to be tried in this action had already been litigated between the parties, and determined in the defendant Rohrs’ favor. The difficulty, however, in holding that the result in the criminal proceeding estopped the people from trying the question of Rohrs’ violation of the statute in this action, arises from the fact that, if Rohrs had been found guilty in the criminal action, the record in that action would not have been evidence against Rohrs in this action, and therefore, because of the want of mutuality, no estoppel can arise. Greenleaf (1 Ev. § 524) lays down this rule with great distinctness. In section 537 he also lays down the rule that a verdict and judgment in a criminal case cannot be given in evidence in a civil action to establish the facts upon which it is rendered; and, among other grounds why a verdict of acquittal in a criminal case should not be received as evidence in a civil ease, he suggests that the verdict might have been rendered by collusion with the public prosecutor,—a somewhat inshfficient reason, as the public prosecutor is presumed to do his duty. In Phillips on Evidence the rule is also laid down that the record in a criminal ease is not evidence in a civil case, because of the want of mutuality. In both of these writers, however, one of the strong grounds relied upon is the fact that the parties to the two actions are not the same,— a ground inapplicable to the case at bar. The fact, however, that there is a want of mutuality still exists, and this seems to be an answer to the appellant’s claim.

The objection that the court erred in taking the case from the jury, and directing a verdict, is not well taken, because the defendants at the trial made no claim that there was any question to be submitted to the jury; but, on the contrary, insisted that there was not, by claiming that the court should direct a verdict in favor of the defendants. The exceptions which have been brought to our attention by the appellant upon his points not being well taken, the judgment appealed from must be affirmed, with costs.  