
    Sidney Bell, Respondent, v. Moen’s Asphaltic Cement Company, Appellant.
    
      Penalty—action for the penalty imposed for possession and use of milk cans without the consent of the owner— the cans must be capable of use.as milk cans.
    
    A corporation engaged in the business of asphalt roofing does not render itself liable, under chapter 401 of the Laws of 1887, ás amended -by chapter 25 of the Laws of 1890, to the penalty imposed for having the possession and use of milk or cream cans without the consent of the agent of the owner or .owners' or shipper or shippers thereof, where it appears that it has used, for the purpose of holding tar and oil, old, rusty, dilapidated milk cans, with holes in them, so that they could not hold milk and were useless for milk cans or for dairy purposes, and which have been lined with hard asphalt in order to make them capable of retaining the oil and tar with which they were filled.
    Appeal by the defendant, the Moen’s Asphaltic Cement Company, from a judgment of the Supreme Court in favor of the jfiaintiff, entered in the office of the clerk of the county of Grange on the 10th day of August, 1897, upon the report of a referee.
    
      George W. Poueher, for the appellant.
    
      Joseph A. Kent, for the respondent.
   Goodrich, P. J. :

. The plaintiff, as agent of the owners of five .milk cans, brings this .action pursuant to chapter 401 of the Laws of 1887, as amended hy chapter 25 of the Laws of 1890, to recover five penalties of fifty dollars each for the possession and use of such cans by the defendant without the consent of the plaintiff ' as such agent. The statute, section 1, makes it unlawful for any person “ without the consent of the agent of the owner or owners or shipper or shippers, to use or sell, dispose of, buy or traffic in any milk or cream can or cans, belonging to any dealer or dealers, or shipper or shippers of milk or cream residing in the State of New York, or elsewhere, who may ship milk or cream to any city, town or place within this State, having the name or initials of the owner or owners of such dealer or dealers or shipper or shippers stamped, marked or fastened on such can or cans or to willfully mar, erase or change by remarking or otherwise said name or initials of any such owner or owners or dealer or dealers, or shipper or shippers so stamped, marked or fastened upon said can or cans.”

Section 2 provides that the fact of any person, without the consent of the agent of the owner, etc., either using or having in his possession or control any such can, shall be presumptive evidence of the unlawful use of such can. As this possession affords only presumptive evidence of unlawful use, such presumption may be rebutted by proof that the defendant had made no unlawful use of the cans within the statute.

The real question in the case is whether the use of the cans by the defendant falls within the purview of the statute in question.

The act, as amended, imposes a penalty of fifty dollars for each can found in the possession of any person, recoverable by action brought by the agent of the owner. Being highly penal, this act must be strictly construed, and strict construction requires that the cans, the use of which is complained of, shall be in such a condition as to be capable of use as milk cans; and the act may not be extended to cover cans which do not fall within tire purview of the statute. The record discloses that the cans were not of that character. The defendant is a corporation engaged in the business of asphalt roofing, and the cans came into its possession, when or how does not clearly appear, but they were used by it for holding tar and oil.

Mr. Beakes, one of the owners, testified that the life of a can depends upon its usage; sometimes they last for five years; sometimes they are unable to make a second trip; that old cans are used at the creameries for pot cheese, and when they cannot be thus used and have become unfit for dairy use, they were piled up, thousands of them,” in a sort of can refuse heap, both before and after the act of 1887; that people helped themselves sometimes to them ; that they were not broken up and sold, because the material was not worth anything; in other words, that they were regarded as of no value for dairy use. It is manifest, therefore, that a time comes when the owner of such cans gives no further attention to them, and becomes indifferent to their control. It does not clearly appear when the particular five cans came into the possession of the defendant. It had a great many of such cans, and the secretary of the corporation and a workman testified that, while they could not- specify particularly the condition of the five cans, all which the company had in use were old, dilapidated, and battered, some with'out covers, some without rims; that they were rusty, had holes in them and would not hold milkthat some were picked up in vacant lots; that before they would even hold tar, they had to have a coating of asphalt run around the inside, and that they were used only to hold tar. . This is corroborated by the plaintiff, who says that when he saw the five cans they all contained, or had contained, tar and oil. It further appears that the plaintiff was engaged for about an hour in “ pecking ” off the coating of the cans, so' as to learn the numbers and initials for identification.. This evidence justified the finding of the referee that, at the time the defendant obtained possession of them, they were in a worn and battered condition, of little or no value and unfit for further use for dairy purposes.”

We cannot, therefore, agree with the learned referee, that the defendant was liable under the statute. The cans in question, probably, when they came into the possession of. the defendant, and certainly when they were discovered by the plaintiff, had practically ceased to be milk cans or useful for dairy purposes, just as surely as if they had been battered together into old metal, ready only for the melting pot. The use. by the defendant of such cans, lined with hard asphalt, for holding tar and oil was not within the inhibition of the statute.

The'judgment should, therefore, be reversed.

All concurred.

Judgment reversed and new trial granted before a new referee to be appointed'at Special Term, costs to abide the event. 
      
      
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