Summary
In People v. Wiard (61 App. Div. 612; affd., on grounds stated in memorandum below, 170 N.Y. 590) the producer delivered eight cans of milk to a railroad station for a single purchaser.
Summary of this case from People v. ButlerOpinion
April Term, 1901.
Plaintiff's exceptions overruled, motion denied and judgment ordered for the defendant on the verdict, with costs. Held, that the analysis of a sample of milk taken from only part of the product delivered by the producer at any one time to a single purchaser will not afford a basis for an action for a penalty under the Agricultural Law (Laws of 1893, chap. 338). All concurred, except McLennan, J., who dissented upon the ground that, under the Agricultural Law, which provides for making a chemical analysis of a sample of milk delivered by a producer as one step in determining whether such milk has been adulterated, it is not necessary to mix all the milk delivered at one time by the producer, and take a sample for such analysis from the whole, in order to make such analysis the basis of an action to recover the penalty fixed by the statute; but the analysis of a sample taken from a single can or package may be made the basis of such an action, provided only that the sample so taken from such single can or package shall be a fair sample. Whether or not the sample taken and analyzed in this case was a fair sample was a question of fact which should have been submitted to the jury.