
    PEOPLE, Appellant, v. WIARD, Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    April 4, 1901.)
    Proceed-Proceedings by 'the people of the state of New York against Matthew Wiard.
   •PER GU-RIAM.

.-Plaintiff’s exceptions overruled, motion denied, and- judgment ordered for the defendant" on the verdict, with costs. Held, that the analysis of. a sample- of milk taken from only part of the product delivered by the producer’at any one time to-a single purchaser .will not afford a basis for an action for a penalty under the agricultural law. .

McLENNAN, J.,

dissents, upon -the ground that, under the agricultural law, which provides •for making a chemical analysis of a sample of milk delivered by a producer as one step in determining whether such milk has been adulterated, it is not necessary to mix all the milk delivered at one time'by the producer and take a sample for such analysis from the whole, in order to make such analysis the basis of. an action to recover the penalty fixed by the statute; but the analysis of a sample, taken from a single can or package may be made the basis of such an action, provided, only, that the sample so taken from such single can or package shall be a fair sample. Whether or not the sample taken and analyzed in this case was a fair sample was a question of fact, which should have been submitted to the jury.  