
    The People of the State of New York, Appellant, v. George Tsitsera, Respondent.
    Second Department,
    May 6, 1910.
    Foods—Agricultural Law—sale of adulterated milk — intent immaterial —evidence — proof of sale — taking samples — defenses — safe of skimmed milk as such.
    Persons selling or offering or exposing for sale milk which does not conform to the standard prescribed by the Agricultural Law are liable for the penalty irrespective of knowledge, intent or moral wrong.
    There is sufficient proof that a defendant sold, offered or exposed adulterated milk for sale where it appears that he told .inspectors of the Agricultural Department in answer to an inquiry that he served the milk in coffee and sold it by the glass,
    Evidence in an action to recover the penalty examined, and Tield, that samples of the adulterated milk were taken after proper stirring by the inspectors, and a. duplicate thereof was delivered to the defendant as required by the statute, and that a proper written statement of the reason for talcing the sample was given.
    The fact that a defendant sued for the penalty was selling skimmed milk as such, as is permitted by the statute in certain counties, is an affirmative defense tobe taken by him. The People are not bound to prove a negative as part of their ’ case.
    Appeal by the plaintiff, The People of the -State of New York, ■from a judgment of the Municipal Court of the city of New York, borough of Queens, in faVor of the defendant; rendered on the 31st day of January, 1910, dismissing the complaint.
    
      
      Emile E. Rathgeher, for the appellant.
    
      William Rasgum, Jr., for the respondent.
   Burr, J.:

The Agricultural Law provides that “ No person shall sell or exchange, or offer or expose for sale or exchange, any unclean, impure,- unhealthy, adulterated or unwholesome milk.” (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], § 32.) It further provides that “ Every person violating any of the provisions of this chapter shall forfeit tó the People of the State of New York the sum of not less than fifty dollars nor more than one hundred dollars for the first violation, and not less than one hundred dollars nor more than two hundred dollars for the second and each subsequent violation.” (Id. § 52.)

This action was brought to recover the penalty provided for selling or offering for sale adulterated milk. At the close of plaintiff’s case the complaint was dismissed, and from the judgment then entered this appeal is taken.

The same act defines adulterated' milk to mean : 1. Milk containing more than eighty-eight per centum of water or fluids,” of, 2. Milk containing less than twelve per- centum of milk solids,” or, “ 3. Milk containing less than three per centum of fats.” (Id. § 30.)

Persons selling or offering or exposing for sale milk which does not conform to this standard incur the penalty, irrespective of knowledge, intent or moral wrong. (People v. Bowen, 182 N. Y. 1, 6; People v. Kibler, 106 id. 321.) The undisputed evidence in this case establishes that the milk in question when subjected, to chemical analysis violated the standard in each of the three respects specified.

Defendant .claims, first, that there was no sufficient evidence that he sold or offered or exposed for sale this adulterated milk. He kept a restaurant in Flushing. The testimony of the State inspector is that when he and his companion entered said restaurant he told the defendant: We are inspectors and we want to look at the milk which you serve.” Defendant, thereupon produced the can from which the sample was taken, which was afterward analyzed. When asked if he served this milk in the restaurant, he said he did in the coffee 'and also by the glass — sold it by the glass.” This was sufficient upon this point.

The second objection raised by defendant is that the samples which were analyzed were not taken in the manner required by the statute, which provides that “ When the. Commissioner of Agriculture, an assistant commissioner, or any person or officer authorized by tlie commissioner, or by this chapter, to examine or inspect any product manufactured or offered for sale shall in discharge of his duties take samples of such product, he shall, before taking a sample, request the person delivering the milk, or who has charge of it at the time of inspection, to thoroughly stir or mix the said milk before the sample is taken. * * *' The person taking the sample of milk for analysis shall take duplicate samples thereof in the presence of at least one witness, and he shall in the presence of such witness seal both of such samples, and shall tender, and, if accepted, deliver, at the time of taking, one sample to the manufacturer or vendor of such product, or to the person having custody of the same, with a statement in writing of the cause of the taking of the sample.” (Id. § 35.) There is no dispute that the witness Esrnay was authorized by the Commissioner of Agriculture to examine and inspect this milk. On the day in question, while in the company of Frank A. Jones, after the can had been produced, he took the cover off the can, mixed the milk and stirred it ..up and filled the test tube and made an examination of it with a lactometer. That examination exciting his suspicion he returned the milk from the test tube back to the can and then asked the defendant himself to stir and mix the milk, which he did. After that he again filled the test tube, and then, in the presence of Jones, took duplicate samples thereof, sealed both of such samples and delivered one to defendant. The other sample was delivered to the chemist, who made the analysis which resulted in showing that the milk was adulterated. This was a sufficient compliance with the provisions of the statute. The fapt that Esinay himself stirred the milk before making the first examination is of no cbnsequence, since that sample was returned to the can and not made the subject of any analysis. The terms of the statute expressly relate to a “ sample of milk for analysis.” Before this sample was taken the provisions of the statute were strictly complied with.

Defendant further contends that there is no evidence that the sample given to him contained a statement in writing of the cause of the taking of the sample. Esmay testified that when he had sealed the two bottles containing the sample he put a statement in writing on them, and that the one delivered to the defendant contained the same statement as the one which he retained. Upon that bottle which was offered in evidence was the following statement: “Milk thought to be impure and below standard fixed by chapter 1 of the Consolidated Laws of 1909 as amended, and sample taken to be analyzed for that reason.” * This was a sufficient compliance with the statute in this regard.

Finally, defendant contends that there is no proof that he was not offering this for sale as skimmed milk and that the statute provides that “Except in the counties of Hew York and Kings, the prohibitions contained in this article against the sale of adulterated milk shall not apply to skim-milk, which' is clean, pure, healthy, wholesome and unadulterated, except by skimming,, sold for use in the county in which it is produced or an adjoining county, if it is sold for and as skimmed milk.” (Id. § 44.) This was matter of defense, and plaintiff was not bound to prove a negative as part of its case. (People v. Kibler, supra.) In that case the court say: “ The proof on the part of the prosecution was of the sale of one pint of milk'which was below the lawful standard. That made a prima facie case. Why the milk was below the standard, or by what means the result had been accomplished, the prosecution were not bound to prove. If the effect came from skimming the milk, and the sale was within the exception of the statute, that was matter of defense, and especially for the reason that the fact, if it existed, was one peculiarly within the knowledge of the defendant, and which he could readily prove by his own testimony.” The proof in this case was quite sufficient to call upon defendant to introduce evidence, if he had any, in his own behalf, and the motion for a nonsuit was improperly granted.

The judgment of the Municipal Court should be reversed and a new trial ordered, hosts to abide the event.

Jenks, Thomas, Rich and Caer, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  