
    The People, Resp’t, v. Edward Hodnet, App’lt
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Costs—Penalty—County.
    In an action for tlie recovery of a penalty for selling adulterated milk, tlie county is not chargeable with the costs.
    Appeal from an order denying motion to charge county with costs.
    
      jK K & G. W. Harding, for app’lt; Charles H. Brown, dist-atty., for resp’t.
   Bradley, J.

In this action, prosecuted by one of the assistants of the state dairy commissioner, the defendant was charged with bringing to the Filmore Cheese Factory, in Allegany county, adulterated and impure milk, to be made into cheese, in violation of the “ Act to prevent deception in the sale of dairy products and to preserve the public health.” Laws 1885, chap. 183. The trial resulted in a verdict for the defendant, and a judgment in his favor for costs. He seeks to have his costs awarded against the county of Allegany, pursuant to the statute which provides that in actions brought in the name of the people of the state to recover money or property, or to establish a right or claim for the benefit of a county, “ costs shall not be awarded against the people, but where they are awarded to the defendant, they must be awarded against a body for whose benefit the action * * * was brought.” Code Civ. Pro. § 3243. The state dairy commissioner is charged with the enforcement of the provisions of the act. Laws 1885, chap. 183, §§ 12, 19; Laws 1887, chap. 583, § 2. And the expenses incurred in the discharge of his duties are paid from the state treasury. No "duty is, by the statute, devolved upon the officers of any county, as such, to proescute actions against those violating its provisions. The money obtained on recovery is, however, divided equally between the state and city or county where the prosecution is had, —Laws 1886, chap. 577, § 5, — except that money recovered in actions prosecuted by a citizen of the state is divided equally between him and such city or county. Id. §§ 6, 25. The products of cheese factories are ' articles of commerce, go into the markets of the country, and are dealt out to the public through the retail trade in the towns, villages and cities of the state. The resulting benefits contemplated by the provisions of the act, in their observance and enforcement, are to the community at large, and they are not necessarily any less to other counties than to those within which the prosecutions are had. The penalty is not imposed as a benefit, but is a means ■prescribed to render the beneficial purposes in view impressive and effectual. The recovery of it, therefore, is merely incidental to the object to be attained, and the contribution to the county whose courts are employed to determine such -prosecutions is quite reasonable.

It is urged that, for the purposes of the relief sought, it is sufficient that the object of the action was to benefit the county in any degree. The protection of the public health is an aim of the act. The people of the county where the prosecution is had participate in the benefits in that respect, as well as in the money which may be derived from a successful result of such prosecution. But the sanitary advantages to the county are in common with tfypse to other portions of the state. The reasonable intendment of §3243, before mentioned, is that the benefit there referred to is one peculiar to the county, in its relation to the main object sought to be attained by the prosecution of the action; and it is then that the burden of the costs awarded to defendants, resulting from the unsuccessful prosecution of actions, is cast upon the county. Then it may be assumed that actions would and should be somewhat under the control or direction of the local official authorities. They do not necessarily have any such relation to those prosecuted pursuant to the act in question, and, as has been observed, the recovery of the penalty is not the chief purpose of it, or the ultimate object in view by the prosecution of actions therefor. The purpose is well expressed in the title, before mentioned, of the act. In People v. Alden, 112 N. Y. 117; 20 St. Rep. 496, it was held that the costs were necessarily awarded against the county of Warren because the statutes under which the action was brought “ assume that the protection of game and the enforcement of the game laws is a county interest.” To the same effect is People v. Smith, 47 St. Rep. 170; 20 N. Y. Supp. 332. That interpretation cannot, we think, be given to the dairy act, and, therefore, those cases do not seem to aid the defendant in the present case. The view taken is that the county of Allegany is not chargeable with his costs.

The order appealed from should, therefore, be affirmed.

All concur.  