
    The People of the State of New York, Plaintiff, v. Isaac C. Terwiiliger, Defendant.
    (Supreme Court, Chemung Trial Term,
    June, 1908.)
    Adulteration — Actions for penalties — Evidence — Admissibility — Admissions by agent.
    Evidence — Admissions — Admissions by representatives — Servants.
    In an action by the People of the State of New York to recover a penalty for the sale of adulterated milk, proof of a statement of defendant’s son, employed by him to sell milk, that a certain can of milk was not produced by defendant but was purchased of a creamery company is not competent as against the defendant to establish the facts stated.
    Action to recover a penalty.
    Benjamin F. Levy, for plaintiff.
    Frank S. Bentley (Roswell R. Moss, of counsel), for defendant.
   Coman, J.

This action was brought to recover a penalty for the sale or offering for sale of adulterated milk, in violation of the provisions of sections 20-22 of the Agricultural Law.

The evidence showed that the defendant was a vendor of milk in the city of Elmira, engaged in selling at retail from house to house; that he was a farmer, residing near the city, the owner of a dairy and a producer of milk. On the morning in question, the defendant’s peddling wagon, driven by his son, started from the farm with a supply of milk, but whether with the milk in question is disputed. There were several cans of milk upon the wagon when the inspectors made their tests, and these tests showed that some of the cans contained milk of the required standard and that the milk in one of the cans was below the standard. Duplicate samples were taken from the latter can, one of which was given to the driver; and one was forwarded to the State chemist. His analysis showed the milk to be much below the statutory standard of purity.

Ho herd sample was taken, and no attempt was made to take one. The reason given for not taking or attempting to take a herd sample was that the driver of the wagon, the .defendant’s son, stated to the inspectors that the can of milk in question was not produced by the defendant but was purchased of the Royal Creamery Company.

The driver was sworn by the plaintiff to prove his agency, but he was not asked where the milk was produced or bought; and no attempt was made to prove the alleged fact by the-employees of the Royal Creamery Company. The only proof offered on this subject was of the alleged declaration of the son, and this was excluded under the defendant’s objection.

The trial resulted in a nonsuit at the close of the plaintiff’s case; and I have entertained a motion for a new trial for the purpose of considering two questions, viz.: Was the taking of a herd sample necessary; and, Was it error to exclude the declarations of the defendant’s son?

My subsequent investigations and an examination of the authorities cited by counsel have resulted only in confirming the impressions formed at the trial.

Section 19 of the Agricultural Law provides for the taking of a herd sample, and states the cases in which the taking of such a sample is necessary. It requires the taking of such a sample in all cases Where the same is delivered by the producer for manufacture, sale or shipment, or from a milk vendor who produces the milk which he sells.”

It might he interesting to consider whether or not, in all cases where" a herd sample is not taken, the onus is upon the plaintiff to show that the seller was not the producer; hut the determination of that question is not necessary to the decision of this case, because, at the close of the plaintiff’s case, the only evidence bearing upon the question showed affirmatively that the defendant was a producer, and at least tended to show that he produced the milk in question. My impression is that, in an action of this character, there are no presumptions of fact against the defendant, except such as are expressly created by the statute, and that it was essential for the plaintiff to show that the defendant did not produce the milk in question, unless it excused the failure to take such sample.

This it sought to do by proof of the declarations of the defendant’s agent to the effect that the defendant did not produce the milk but purchased it of another.

I have no doubt that, if the defendant had personally stated to the inspectors who took the samples that he did not produce the milk, and thus induced them not to take a herd sample, he would have been estopped from raising the question that no herd sample was taken; and the only question remaining is, whether the act of the agent, in making such declaration, is to be regarded as the act of the defendant.

I have examined the numerous authorities cited by counsel upon this point, but do not consider it necessary to analyze them. They do not change the settled and fundamental principles of the law of agency which, I believe, are decisive of this case.

Generally speaking, the acts and declarations of an agent are binding upon his principal while, and only while, he is discharging his duty as an agent and acting within the scope of his authority.

The agency of the defendant’s son, as disclosed by the evidence, was for the purpose of selling milk to the defendant’s customers in Elmira. If, in the course of business, he represented to one of these customers that the milk was produced by the defendant, that it was of a certain kind and quality, or that it was only of a certain age, the defendant would be bound by such representations. The reasons why the defendant would be bound by representations of this character are, that they relate to the subject-matter of his agency, they are within the presumed scope of his authority, and they are made to persons with whom he is authorized to deal. The authority to make such representations is implied from the nature of the employment; but the defendant did not employ his son to do business with or have any dealing with the Agricultural Department or its agents, and there is nothing in the nature of his employment from which such authority naturally flows or would be implied.

The business in which the defendant employed his son was that of selling milk, and any representations made by his son in that business would be binding upon the principal ; but there is no relation whatever between the business of selling milk and that of negotiating with the agents of the Agricultural Department and making statements to them, either as to the quality of the milk or as to the place where it was obtained; and this I believe to be especially true in an action of this character, where the basis of the claim is of a quasi criminal nature. For these reasons, I think that the nonsuit was properly granted and the motion for a new trial must be denied.

Ordered accordingly.  