
    The People of the State of New York, Respondent, v. Nathan Abramson and Aaron Fichhandler, Appellants.
    Third Department,
    March 9, 1910.
    Public health —foods — sale of impure milk — delivery in foreign State — pleading — complaint.
    Where, in an action to recover penalties under the Agricultural Law for the sale of impure milk, the complaint alleges that the defendants at Dunraven, N. Y., sold a specified number of cans of milk from which the cream had been removed without marking such cans as “skimmed milk,” and shipped the same by railroad consigned to J. B. of New York city, or G. K. of Brooklyn, N. Y., and that the milk was delivered by the railroad 'to the consignee at Weehawken, N.-J., a demurrer on the ground that the complaint does not state a cause of action, as the sale was to a resident of New Jersey, and delivery was made in that State, so as to be á matter of interstate commerce, will be overruled.
    The fair inference from the complaint is that the persons named therein as consignees were dealers in milk in their respective cities, and that the milk was shipped to them for sale therein, and that for their own convenience they accepted deliver)' in New Jersey.
    Appeal by the defendants, Nathan Abramson and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county.of Delaware on the 21st day of September, 1909, upon the decision of the court, rendered after a trial at the Broome Special Term, overruling the defendants’ demurrer to the complaint.
    
      
      G. L, Andrus and A. G. Fenton, for the appellants.
    
      Hamilton J. Hewitt, for the respondent.
   Houghton, J.:

The action is to recover the penalties prescribed by section 37 of the Agricultural Law (Laws of 1893, chap. 338, as amd. by Laws of 1901, chap. 656) for the sale of impure milk.

The complaint sets forth thirteen separate causes of action and alleges that on each of the days from October 15 to October 21, 1908, the defendants sold to separate individuals a specified number of cans of milk from which- the cream had been removed, without marking such cans as skimmed, milk.

The defendants demurred to each separate cause of action on the ground.that sufficient facts were not alleged to constitute a cause of action, and to the entire complaint on the same ground, and also as to each separate cause of action that causes of action were improperly united. . The demurrer was overruled and from the interlocutory judgment entered thereon the defendants appeal.

Each cause of action alleges a sale at one time of several cans of . skimmed milk without marking, and a penalty is claimed for each can. Appellants do not press on this appeal the improper uniting feature of their demurrer, but insist that neither the complaint as a whole nor the several separate counts state -facts sufficient to constitute a cause of action. The ground of this claim is that the complaint alleges a sale of skimmed milk without marking, by a resident of this State to a resident of the State of Hew Jersey, to'be delivered and actually delivered in such foreign State, and- that the Legislature cannot prohibit such a sale because it is interstate commerce which is controlled exclusively by Congress and with which a State cannot constitutionally interfere.

Whether it w'ould be a violation of the provisions of the Agri- ■ cultural Law for a resident of this State to agree with a resident of a foreign State to deliver and sell to him in such foreign State impure milk is an interesting question which we are not called upon on this.appeal, to decide, for as we interpret the complaint, no such facts are alleged.

The 2d clause of the eoihplaint alleges that defendants, are doing business as vendors of milk at Hunravenln the county of Delaware, this State, and that they are not producers, and this allegation is incorporated in each of the several separate-alleged canses of action. Each cause of action is set forth in substantially the same language, aside from dates, number of cans and purchaser, and states that at Dunraven' the defendants exposed for sale, offered for salé, and sold the specified number of cans, each containing a certain number of quarts of milk, and shipped the same from the railway station at Dunraven,'consigned to J. Breakstone, of New York city (or Gr. ICotcher, of Brooklyn, N. Y.), and that the same ivas delivered by said railroad company to the consignee at Weehawken, N. J., and that such milk was not sold or marked for and as skimmed milk, and that the defendants thereby incurred the penalty of $100 for each can.

The fair interpretation of this allegation is that the defendants at their place of business at Dunraven, N. Y., sold the milk in quesr tion and delivered it to the common carrier at that place consigned to the purchaser. So far as they were concerned the sale and delivery was then complete and it all had occurred at Dunraven and within this State. The language which the pleader has used does not show that no sale was made, until delivery of the milk to the purchaser at Weehawken, N. J. ' If for convenience or otherwise the common carrier permitted the consignee to take the goods from its hands at any particular place it did not effect the delivery or the bargain of sale which the defendants made at Dunraven. While a statute imposing a penalty must be strictly construed and the allegations of the complaint must bring the cause of action within the statute, the language used must be reasonably and fairly interpreted.

The Legislature by section 20, subdivision Y, of the Agricultural Law has declared that milk from which any part of the cream has been removed is adulterated milk, and by section 31 has provided that it may only be sold for and as skimmed milk in tlie county in which it is produced or in an adjoining county, except that in the counties of New-York and Kings it can not be sold at all. A sale .of skimmed milk is not, therefore, wholly prohibited, but such sale must be made as such and for what it actually is, and not as the pure product. If milk is offered for sale as milk simply, the presumption is that it is offered as pnre milk. The Legislature, therefore, had the right to inflict a penalty .for the selling of skimmed milk without making it known that it was such. If the sale occurred wholly within the State the defendants do not challenge the constitutionality of the law, and concede that it has been expressly upheld as constitutional in People v. Bowen (182 N. Y. 1), and in People v. Koster (121 App. Div. 852), and in St. John v. New York (201 U. S. 633). If the sale was made within the State it is of no moment that the milk was to be shipped and was actually shipped to customers in other States. (People v. Niagara Fruit Co., 75 App. Div. 11; affd., 173 N. Y. 629; People v. Bishopp, 106 App. Div. 266.)

While the description of the consignees as “ J. Breakstone, of ¡New Yolk City” and “G. Kotcher, of Brooklyn, ¡NI Y.,” is not especially apt to describe them as dealers in milk in the respective cities and residents thereof, still, taking it in connection with other allegations of the complaint, the fair- inference is that they were dealers in those cities, and that the milk was shipped to them for sale therein, and that for their own convenience they accepted.delivery from the carrier at Weehawken. Under such interpretation the entire transaction, which Avas an offense against the statute^ occurred Avithin the State of Dew York and between residents thereof. It would not change the situation that, in order to reach its final destination, the milk must pass through some other State.

Our conclusion is that the demurrer was properly overruled, and that-the judgment must be affirmed, with costs, with leave to the defendants to Avithdraw their demurrer and ansAver on payment of the costs of this court and of the court below.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to defendants, within .-twenty -days after service of this order, to withdraw their demurrer and answer on-payment of costs in this court and the court beloAv.  