Genesee Valley Milk Products Co. v. J. H. Jones Corp.

Spring, J. (dissenting):

I do not assent to the conclusion reached by the majority of the court.

*628 Section 30 of the Agricultural Law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], as amd. by Laws of 1909, chap. 186, and Laws of 1910, chap. 341) defines with much particularity the term “ adul terated milk.” Subdivision 7 is as follows: “ Milk from wliicl any part of the cream has been removed.” Section 37 of that act is entitled “Regulations in regard to condensed milk,” and relates to that subject exclusively. It provides: “Mo condensed milk shall be made or offered or exposed for sale or exchange unless manufactured from pure, clean, healthy, fresh, unadulterated and wholesome milk from which the cream has not been removed either wholly or in part, or unless the proportion of milk solids shall be in quantity the equivalent of twelve per centum of milk solids in crude milk, and of which solids twenty-five per centum shall be fats.”

• The facts in this case, which are undisputed, show that the plaintiff, a Monroe county corporation, sold and delivered to the defendant, a corporation in the city of Mew York, during the year 1910, a large quantity of condensed milk which was shipped in cans from time to time as ordered. The evidence does not show whether any of these cans were labeled. The statements of account rendered by the plaintiff to the defendant appear in the appeal book, and, as a sample, they are in the following form: “ 39 Cans Oond. Milk ^ $3.75, $146.25.” There is no controversy as to what the cans contained. The expression “ half and half,” as both parties knew, indicated that the contents were composed of one-half skimmed milk,, that is, milk from which the cream was removed, and one-half pure milk. The expression “half and half” also had a well-understood meaning in the milk business, and it was the kind of milk which the defendant ordered. The defendant sold this product to its customers, and has been paid in part for the sales which it made.

It seems to me that the plaintiff in selling this product is within the express provisions of section 37 of the Agricultural Law. It “ made ” condensed milk, and sold it, which was not manufactured from “ unadulterated ” milk; or, in other words, “ milk from which the cream has not been removed either wholly or in part.” As between the parties, of course, we may say the defendant should pay when it received what it ordered. If, however, the plaintiff *629 has committed a misdemeanor by violating this statute (Agricultural Law, § 52), I take it, it cannot recover. If a man purchase on credit a gallon of whisky or other article from one prohibited from selling it, no legal liability is created, although the purchaser sells and z’eceives cash for the same product (Griffith v. Wells, 3 Den. 226; Tiffany Sales, § 77, pp. 140 et seep), and that principle holds good here.

The controlling principle in construing a statute of this kind is to ascertain the evil which the Legislative is seeking to prevent or eradicate. Condensed milk has become a product zzsed extensively. It is contained in cans, and only an expert can discover the ingredients which znay compose the preparatiozi. The Legislature, in order to make certain that it should be composed solely of wholesome milk, fixed an arbitrai’y standard for this product. It pursued the same course in defining adulterated milk when it provided that if it contained more than eighty-eight per centum of water or fluids it "was within that term. If condensed znillc should consist partly of skimmed znillc, I assume that it would not be deleterious to public health. That is also true of milk if it contains ninety pei’centuzn of water, instead of the tnaxitnum percentage presez-ibed in the statute. The point is that the Legislative was seeking to regulate the manufacture and sale of a product of universal consumption. In order to make effective any legislation upon the subject it was necessaz*y to pz’escribe definitions and arbitrarily, as we znay say, fix standai-ds, and if they were transcended by the seller of milk the statute was violated and he was liable for the penalty imposed, or even for a misdemeanor, although no evil effects resulted or were likely to z-esult. Inasmuch as condensed znillc is so generally used and the public can be deceived so easily as to its component parts, the mazzufactuz’er and seller have been held to a very rigid rule, and that is that condensed milk must contain only unadulterated milk.

It has frequently been held that whether the manufacturer or seller intended to deceive is unimportant. (People v. Bowen, 182 N. Y. 1, 6.; People v. Killer, 106 id. 321; People v. Cipperly, 101 id. 634, reversing 37 Hun, 319, on dissenting opinion delivered below.)

Nor do I think that the Legislature transgressed its authority in fixing the arbitrary standard which it did. The statute in its gen *630 eral features, especially pertaining to the watering of milk, has been frequently upheld. (People v. Beaman, 102 App. Dir. 151; People v. Bowen, 182 N. Y. 1, 6, supra.)

The troublesome question is the claim that it was not intended by the Legislature to make it a misdemeanor or to prohibit in any way the making of a preparation consisting of skimmed milk and whole milk and selling it, provided the purchaser is apprised of the exact parts of which the product is made. There is no prohibition in the statute against selling skimmed milk. On the contrary, the right to sell it seems to be recognized. It would follow that to sell skimmed milk condensed would not be a violation of the prohibition of the sale of condensed milk, as that term is defined in the statute. There is much force in this suggestion, but it seems to me that the statute has a broader purpose than this interpretation would give to it. The milk was sold in cans, apparently unlabeled by the defendant, in large quantities and, of course, it was expected to he sold to numerous consumers and used by them. The chances are that the ultimate consumer would believe that the condensed milk which he was using was that which the statute has defined. It was the public health generally which the Legislature had in mind and to prevent the spurious product from being sold, not primarily to a milk company, but to the multitude who use it.

Again, it is to borne in mind that the plaintiff designated this as condensed milk, which, as already stated, is defined by the statute, and then seeks to inform its purchaser that it is not condensed milk at all, but a preparation or combination of pure milk and adulterated milk in equal quantities. It might have added a substance to it in order to preserve it; or, if it could be retained in the- combination, have added water to it and still be exonerated, if it only said in its statement of account that it is condensed milk, but contains other ingredients than milk itself.

While there is no specific prohibition against the sale of skimmed milk, yet section 44 of the Agricultural Law apparently restricts its sale. That section, which is not applicable to the counties of New York and Kings, provides that the prohibitions against the sale of adulterated milk are not applicable" to the sale of skimmed milk if sold for and as skimmed milk for use in the county in which it is produced, or an adjoining county.

*631 The reasonable inference would seem to be from this statute that a sale made not within the express provisions of this statute is prohibited. This milk was produced in Monroe county and sold in the county of Mew York, so that the plaintiff is not exculpated, but, rather, condemned, by the section referred to.

I, therefore, think that the judgment should be affirmed.

Williams, J., concurred.

In each action judgment reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and fact.