Opinion
May, 1910.
Nathan Bardach, for appellant.
James F. Fitz Gerald, for respondent.
Plaintiff, a retailer, bought from defendant, a wholesaler, vinegar in bottles labeled "Pure Cider Vinegar." In fact it was adulterated. Plaintiff sold one of these bottles, and was, in an action brought by the State, fined $100 penalty and $20 costs for a violation of the "Pure Food Law." The present action is brought to recover the amount of this fine and costs, plus $25 counsel fees incurred in defending the previous action.
The judgment below in favor of defendant was rendered on the theory that the damages were not within the contemplation of the parties, that the cause of action arose out of a violation of the law, and that, therefore, it would be against public policy to permit a recovery.
Defendant, however, was both constructively and actually familiar with the law of this State, and was well aware of the risk which plaintiff innocently ran by reason of the false representation made, or implied warranty involved, in the contract of sale. Thus the fine, with its attendant expenses, to which plaintiff innocently became liable, was within defendant's necessary contemplation. Hecla Powder Co. v. Sigua Iron Co., 91 Hun, 429, 432-434.
The costs and counsel fee are clearly recoverable, particularly as plaintiff notified defendant and gave him opportunity to defend the action brought by the State. Whitney v. National Bank of Potsdam, 45 N.Y. 303, 305; Charman v. Hibbler, 31 A.D. 477.
The cause of action against defendant does not arise out of a violation of law by plaintiff, but out of a breach of a contract by defendant. The case of Hecla Powder Co. v. Sigua Iron Co., supra, arose under similar circumstances.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
SEABURY and GUY, JJ., concur.
Judgment reversed and new trial ordered.