
    George W. Crossman and Herman Sielcken, Composing the Firm of W. H. Crossman & Brother, Appellants, v. Theodor G. Lurman and Benjamin D. Williams, Composing the Firm of Theodor G. Lurman & Company, Respondents.
    
      Public Health Law relating to the adulteration of food — it applies to original packages brought into the State — it is not violative of .the right of the United States to regulate interstate commerce—act of Congress on the same subject — concealment of defects, a question for the jury — credibility of witnesses.
    
    Section 41 of the Public Health Law of the State of Hew York (Laws of 1893, chap. 661), relating to the adulteration of food products, is not unconstitutional, so far as it affects goods imported into the State of Hew York in the. original packages, as being an attempt to regulate interstate commerce.
    The fact that Congress has passed a statute (26 Ü. S. St. at L. 414) relating to the adulteration of food x>roducts, does not render inoperative the provisions of the. Public Health Law upon the same subject.
    The vendors in a contract for the sale of coffee brought an action to recover damages because of the vendee’s refusal to accept coffee tendered thereunder. The only question was whether the coloring, admitted to have been used on the coffee, concealed defects therein or made it appear better than it really was or of greater value.
    
      Held, that it.was proper for the court to charge that it was for the jury to say whether, upon the proof given, the full extent of the damage was just as apparent to an ordinary untrained observer, after the beans had been colored, as it would have been had the beans not been colored.
    Where the xilaintiffs in an action placed on the stand one of the defendants and an apparently disinterested third party (attending the trial on behalf of, though not sworn by, the defendants), and such witnesses testify frankly to the facts which the plaintiffs attempt to prove by them, the plaintiffs are not in a position to complain of a charge by the court that “the jury are not at liberty to disregard these witnesses, but these witnesses must be considered to be credible witnesses.”
    Appeal by the plaintiffs, George W. Crossman and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 31st day of May, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of May, 1900, denying the plaintiffs' motion for a new trial made upon the minutes.
    
      Frederic B. Kellogg, for the appellants.
    
      Charles Stewart Damson, for the respondents..
   Rtjmsey, J.:

This action was brought to recover damages because of the refusal of the defendants to accept certain coffee which the plaintiffs agreed to sell to them. The coffee was tendered to the defendants and was refused because it did not comply with the contract, which was to sell 500 bags of sound Rio coffee in’ grade about standard eight and nine of the Coffee Exchange. The contract contained a provision.for grading and arbitration in case of a dispute, as to which it is only necessary to say that there was a dispute and that an arbitrar tian was had, and the arbitrators decided that the boffee was of the grade which the contract called for. The defendants still refused to accept it upon the ground that it ivas colored in such a way as to be adulterated within the provisions of section 41. of the Public Health Law of the -State of New York, and that, for that reason they were not bound to take it. The case has been tried threé times and has been in this court twice before. Upon the first appeal, which is reported in 33 Appellate Division, 422, it was held that the defendants, to justify their refusal to accept this coffee because it was adulterated within the provisions of the Public Health Law, were bound to show, not only-that it was artificially colored, but that, the effect of the coloring was to conceal damage or make the coffee appear better than it really was or of greater valué. No different rule was established when the case was before this court for the second time (46 App. Div. 63), but the judgment from which that appeal was taken was reversed because of the erroneous admission of evidence. Upon the trial now under review it was conceded that the coffee was artificially colored, and the only question as to which ther’e was a dispute, was whether the artificial coloring concealed damage or made the coffee appear better than it really was or of greater value, and that was the question submitted by the court to the jury. The evidence was sufficient to warrant the conclusion which the jury . reached,, and the only matters for us to decide are whether any of the exceptions, taken by the plaintiffs and which are here relied upon are well founded. Those exceptions, so far as it is necessary to examine them separately, are as follows :

It is claimed that the court erred in denying a motion to direct a a verdict for the plaintiffs upon the ground that the question of adulteration was settled in their favor by the arbitration which had taken 1 place under the contract. That question is not open for discussion in this court. It was determined by the General Term (90 Hun, 303; affd., 149 N. Y. 588), which conclusion was adopted by this court upon the former appeal. (33 App. Div. 422.)

But it is claimed that, so far as the sale in the original packages of articles imported.into this State is affected by the Public Health Law referred to, that statute is beyond the power of the Legislature to enact. The argument is that the sole power to regulate commerce is given to Congress; that with respect to the adulteration of food products Congress has exercised that power by chapter 839 of the Laws of 1890 ; that the power being exclusive, the action of Congress overrides the law of any State passed upon the same subject, and, therefore, that the State law has become inoperative. If the Public Health Law was intended to be or could be construed to operate as a regulation of commerce, there could be no doubt that any action of Congress on that subject would be exclusive, and would override the State statute. But the fact, that Congress has the power to regulate commerce does not exclude the exercise of the police power of the State so far as it may prohibit the bringing into the State of anything which, from its nature, may not properly be said to belong to commerce, or because its condition is such that it is detrimental to the health of the people of the State. The rule as to the power of the States is laid down,in the opinion of Mr. Justice Catron in the License Cases (5 How. 504-599), and that rule, although it was not adopted by the court in that case, has been approved in subsequent decisions of the Supreme Court of the United States, and may safely be adopted as showing the power of the States in that regard. (Bowman v. Chicago & Northwestern Ry. Co., 125 U. S. 465, 489; Railroad Co. v. Husen, 95 id. 465.) In each case, whether the result of the adulteration is such as to authorize the Legislature toi prohibit its sale, is a question to be decided with respect to the particular article.

That brings us to an examination of the exceptions taken to the rulings of the court with respect to the admission of evidence. It must not be forgotten that the question for the jury has been brought by the rulings of the court and by the facts admitted on the trial within a very narrow compass. The claim of the defendants is that this coffee had been adulterated within the provisions of the Public Health Law. ■ (General Laws, chap. 25, § 41Heydecker’s General Laws, 2016.) It was not denied that the coffee .was colored with some coloring substance, and the question was whether the presence-of that coloring substance on the coffee concealed damage or made-the coffee .appear better than it really was or of greater value. There was' no other question for, the jury than that, and the testimony which was presented on the trial raised a dispute only so far as it bore upon that question. The burden of proof of that fact was Upon the defendants.

That the coffee was colored was conceded. The defendants proved it by one of .the plaintiffs, called as a witness for the defendants, and the plaintiffs proved it by one of the defendants, called as a witness for. them, so that neither party was in a situation to dispute that fact. The defendants having' given evidence tending to show that the coffee was colored, and that the effect of it was to conceal damage and make the coffee appear better and of greater value than it really was, the plaintiffs put upon the- .stand Lurman, one of the defendants, who gave such testimony as he was called upon to give by them, Lurman answered frankly all the questions he was asked. It appeared from his testimony that he had examined the coffee; that. he. found it nicely colored with a powder;' that he.saw a lot of painted coffee; that it was low grade coffee, containing black, with- - ered, sour and swollen beans; that it was impossible, to tell the brown beans from the black beans because of the coloring matter upon them, and if it had been uncolored it would have been a low grade coffee;: and the effect of the coloring matter was to conceal imperfections in the grains. He gave other testimony as to which there seems to have been no particular dispute. After Mr. Lurman had been sworn, one Lee was called as a witness. He was not, so far as appears, at all interested in the matter, and was attending the trial at the request of the defendants, although he had not been sworn by them. With regard to the testimony of Lurman and Lee, the court was requested to charge That the plaintiffs having called Mr. Lurman.and Mr. Lee as their witnesses, the jury are not at liberty to disregard these witnesses, but these witnesses must be considered to be credible witnesses.” This charge was given, and to it the plaintiffs excepted, but it is to be noticed that the exception of the plaintiffs did not adopt the precise words used by the court in its charge, but the exception read, “are not at liberty to discredit these witnesses, but these witnesses must be considered to be credible "witnesses,” the word “ discredit ” being used instead of the word "“ disregard,” which was used in the charge. When it is considered that these witnesses were put upon the stand by the 'plaintiffs to -establish facts which they deemed material in the case, and that, so far as appears, they testified frankly as to the facts which the plaintiffs sought to prove by them, it is difficult to see how the plaintiffs were aggrieved by the charge of which they complain. One who puts a witness upon the stand does so to prove his case, and asks such questions as he deems necessary to establish the facts he seeks to prove, and he cannot be injured if the jury see fit to believe that the witness is telling the truth with respect to the facts elicited ffrom him.

The charge as given was certainly correct. These witnesses were ■sworn by the plaintiffs, and out of their mouths the plaintiffs elicited •certain facts. It goes almost without saying that the jury were not .at liberty to disregard the testimony of those witnesses. They may not have been called upon to credit all that they said, but they were bound to regard it and consider it to the extent at least of coming to a conclusion whether they would adopt it as to the facts sworn to by those witnesses. Clearly, they were not at liberty to disregard . it, and the court in charging as it did was correct. It is equally •clear that they were bound to regard the witnesses as worthy of -credit. Lee was the plaintiffs’ own witness and was in no sense .adverse so far as appears. It is well settled that where one puts a witness upon the stand he presents him as a credible witness, and he "is not at liberty to say that he is not credible. (Pollock v. Pollock, 71 N. Y. 137,152; Thompson v. Blanchard, 4 id. 303,311; Becker v. Koch, 104 id. 394.) The same applied to Lurman when the plaintiffs saw fit to use him as their witness. (Becker v. Koch, supra.)

The court charged the jury that it was for them to say whether, upon the proof given, the full extent of the damage was, after the beans had been colored, just as apparent to the ordinary untrained •observer as it would have been had the coffee not been colored. I can see no ground for any exception to this charge. It was precisely the question in the case which the jury were bound to pass .upon, and it was properly submitted to them.

It is said that the court erred in charging that there were damaged beans in the coffee. As every witness testified to that fact the objection is not well taken. Even the plaintiff Grossman testified that he .found damaged beans and he picked out some which were there. We have examined the other exceptions taken to the refusals ■ to charge and we find no error in them.

Neither were there any erroneous rulings with, respect to the admission of evidence which can be said to operate to the damage of the plaintiff. We think it necessary to refer to but one class of the evidence which was excluded. That is to the stenographer’s minutes of the testimony given by Lurman and Williams on a former trial. Of course, whatever was said by them in that testimony were declarations of the two defendants and were competent so far as they were material upon the issue which was presented to the jury in this case. Williams' was not sworn as a witness, and, therefore, his declarations upon the former trial were only material if they bore upon some fact which was litigated upon this trial. The only such fact was whether the coloring of the coffee operated to conceal damage or make the coffee appear better than it really was or of greater value. After á careful reading of the testimony of Williams, which was offered in evidence, but which was excluded . and is printed as an appendix to the case, we are unable to find that there is anything in it which bears upon the question litigated before the jury. The only thing as to which he testified with regard to the condition of the coffee was that it was artificially colored. Had that been a disputed question of fact, the exclusion of his evidence upon that point would be something of which the plaintiffs might complain; but as it was admitted that the coffee was colored, this declaration is not of the slightest importance. The remainder of the minutes consisted of matter bearing upon his motive in defending the action, being an attempt to show that he did so because of a decline in the price of colored coffees and that he was himself a dealer in them. In view of the fact that he was not a witness on the trial and his credibility was not in question, his motives were of no importance and his declarations were properly excluded. . ■

The same thing may be said substantially, with regard to the testimony of Lurman. It is quite true that Lurman was a witness on this trial, and it is claimed that some of the evidence given on the former trial tended to contradict some of the things he testified to on the trial under review; but no contradiction can be found in those minutes of any fact which was material to the issues which were presented in this case.

For these reasons, therefore, the ruling of the court as to these minutes was correct. It is quite possible that that testimony might tend to discredit Lurman by showing that he was induced to refuse the coffee and defend this action because there was a fall in the , price of colored coffees, as a result of which he ceased to deal in them; but the plaintiffs having put him upon the stand, his declarations were not competent to be used by them to contradict him, and they were not material because the question was not what were the motives of Lurman,'but whether when he had received the coffee he had acted within his rights.

Hpon the whole case, after careful examination, we cannot see that there was any error, and the judgment must be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment and order affirmed, with costs.  