Cornwell v. Gagwin — 44 N.Y. St. Rep. 12

Majority

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David Cornwell, Treas’r, Resp’t, v. Charles J. Cagwin, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

1. Dairy Law—Cheese factory—Fraud.

In an action against a patron of a cheese factory to recover a penalty for delivering skimmed milk, it is no defense that the cheese-maker, who was also treasurer, and the nominal plaintiff, but not one of the patrons, consented to his taking off cream for his family u«o.

2. Witness—Evidence.

An objection to a question put to a witness on cross examination with a view to showing hostile feelings is properly sustained where the question embraces other matters not admissible.

Appeal by the defendant from a judgment of the county court of Cattaraugus county, affirming the judgment of a justice’s court.

William G. Laidlaw, for app’lt; A. Spring, for resp't.

The action was brought in a justice’s court to recover penalties alleged to have been incurred by the defendant, under the provisions of chap. 427 of the Laws of 1885, for delivering skimmed milk at a cheese factory. The justice rendered judgment against the defendant for fifty dollars, and costs, which' was affirmed in the county court.

The plaintiff was the treasurer of the unincorporated association of patrons of a cheese factory at Farmersville in Cattaraugus county, and the action was brought in his name, under the provisions of § 1919 of the Code of Civil Procedure, for the benefit of the association.

The statute (act of 1885, supra) provides that “ whoever shall, with intent to defraud, * * * bring to be manufactured to

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.any * * * cheese factory in this state * * * any milk from which any cream has been taken * * * shall for each and every offense forfeit and pay a sum not less than twenty-five nor more than one hundred dollars, with costs of suit * * * for the benefit of the * * * association * * * upon which such fraud is committed.” The defendant was one df the patrons of the cheese factory delivering his milk to it daily, and lie habitually committed the offense described in the statute and for which the penalty is prescribed. His wife was in the almost .daily habit of taking cream from the cans, for the use of the family, with his knowledge and approval, and he was in the. habit of delivering to the factory the milk from which the cream . had thus been taken.’ This he admitted on the trial; his only defense being that such acts were without the intent to defraud mentioned in the statute.

In support of this defense, he offered evidence to show that he had the permission of the cheese maker, who was also the treason rer of the association and the nominal plaintiff in this action, to take off cream for family use. The evidence was objected to, .-■and the ruling of the justice excluding it furnishes substantially the only ground of this appeal.

The ruling was clearly correct. The necessary effect of the act forbidden by the statute and admitted by the defendant was to -defraud the associated patrons by depreciating the quality and value of the cheese made at their factory, and the elementary principle that a man is presumed to intend the natural and necessary consequences of his act, knowingly committed, applies with full force to the case of the defendant. The evidence offered by him had no tendency to rebut that presumption. It does not help his case to show that another person was in complicity with him ■in the wrongful act. The consent of the cheese maker and treasurer was not the consent of the patrons of the factory. The ■treasurer was not even one of the patrons. He was the servant .and, in a limited sense, perhaps, the agent of the association employed to make and sell their cheese. His compensation depended upon the number of pounds of cheese manufactured; not upon its quality or price. Of course he had no authority to consent to a fraud upon his employers, and his complicity in the acts o£ the defendant could have no effect to relieve those acts of their fraudulent character. The evidence proposed was, therefore, properly excluded.

If the action had been brought by the plaintiff for his own benefit, or if the j udgment were to enure to his benefit, in whole or in part, a defense based upon the fact suggested by the question might, perhaps, have been available; but such "is not the ■ease. The treasurer was only the nominal plaintiff, and the recovery is, by the terms of the statute, “ for the benefit of the association upon which the fraud was committed.”

Only one other question is presented on this appeal. Mrs. Corn-well, a witness for the prosecution, was asked a question on cross- • examination, with a view, as it is said, of showing hostile feeling on filer part toward the defendant. But the question embraced other

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matters not admissible, and assumed facts not in evidence. The-objection to the question was properly sustained. The judgment must be affirmed.

Judgment of the county court of Cattaraugus county affirmed,, with costs.

Maoomber and Lewis, JJ., concur.