
    Henry S. Pound, App’lt, v. Revilo H. Molyneaux, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Milk cans—Owner of leased premises not liable for presence of
    CAN THEREON WITHOUT HIS KNOWLEDGE.
    A milk can belonging to plaintiff was found in a spring on land belonging to defendant, but it appeared that he had leased said land under an arrangement that the lessee should milk defendant’s cows thereon, cool the milk and deliver it at the road platform, defendant furnishing the cans; that this can was not furnished by defendant, and he did not know it was there. Held, that he was not liable for the penalty under chapter 401, Laws 1887, as amended by chapter 25, Laws 1890.
    Appeal from judgment in favor of defendant, entered upon verdict of a jury.
    Action to recover a penalty of fifty dollars, alleged to have been incurred by defendant for having in his possession, without the consent of the plaintiff, a milk can, the property of ulaintiff, stamped with plaintiff’s initials and name.
    
      F. V. Sanford, for app’lt; C. Hull, for resp’t.
   Barnard, P. J.

action was brought under chap. 401, Laws of 1887, as amended by chap. 25, Laws of 1890. The plaintiff was the owner of a milk can. It was found in a milk spring belonging to defendant, in August, 1891. The owner had given no consent that the defendant should have on his premises the can in question. The question litigated on the trial was one of fact. The defendant testified that although he owned the farm on which the can was found, that he had leased the premises, previous to the finding of the can, to a Mrs. Huysen. The agreement was this: The cows on the farm belonged to defendant and a Mrs. Longyear. Mrs. Huysen rented the spring lot and agreed to milk the cows, cool the milk and deliver the same at the platform by the road. Defendant was to furnish the cans. Defendant did furnish the cans, but this one was not among those furnished by him, and he never knew it was used on the farm. The cans were kept on defendant’s other premises. Assuming these facts to be true, the defendant is not liable for the penalty for using the same. He had no knowledge that the plaintiff’s can was in use in the business. He had leased the property on which the can was found. Mrs. Huysen could use the spring for cans of milk other than defendant The presumption is, under the finding of the jury, that the can was in Mrs. Huysen’s possession and was not used in the business of the defendant. There is no proof that the can ever was used for the defendant’s milk.

The judgment and order denying new trial should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  