People v. Bosch — 129 A.D. 660

Majority

p. 660

The People of the State of New York, Appellant, v. John Bosch and John Bosch, Jr., Respondents.

Second Department,

December 30, 1908.

Headnote

Public health — sale of adulterated milk.

One who sells milk containing more than eighty-eight per cent of water or fluids and less than twelve per cent of milk solids is liable for the penalty prescribed by the Agricultural Law.

It is no defense that such milk was actually given by a cow, nor is the intent of the defendant material.

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendants, rendered on the 27th day of April, 1908, after a trial without a jury.

William Adams Robinson, for the appellant.

No appearance for the respondents.

This is an appeal from a judgment of the Municipal Court in favor of the defendants in an action brought to recover the penalty prescribed by the statute for selling adulterated milk. Section 20 of the Agricultural Law provides, inter alia, that the term “ adul

p. 661

terated milk ” means milk containing more than eighty-eight peleen turn of water or fluids or less than twelve per centum of milk solids. (Laws of 1893, chap. 338, as amd.)

It is undisputed that duplicate samples were taken as prescribed by section 12 of the Agricultural Law.^[1] It is likewise undisputed that the samples so taken were both found, on analysis, to contain more than eighty-eight per centum of water and less than twelve per centum of milk solids. Ho evideneé was offered on behalf of the defendants; nevertheless, the Municipal Court gave judgment for the defendants.

Upon the undisputed evidence the plaintiff was entitled to judgment, as it was established that the milk was adulterated within the meaning of the statute, and it was conceded that it was offered and exposed for sale by the defendants. It may be that the Municipal Court justice decided the case on the supposition that the milk, as given by the cow, contained too much water, for a suggestion of that possibility is found in the cross-examination of the chemist called by the plaintiff, but that is not a defense. The intent of the defendants is not material.

The judgment is reversed.

Jenks, IIookek, Gaynob and Ríen, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered.

* Amd. by Laws of 1898, chap. 557.— [Rep.