the distinction sought to be drawn in the use of words prescribing a penalty for violation of a statute that, if the word "each" instead of the word "every" had been used in the statute under consideration in the case last referred to, a different conclusion might have been reached by the court. Griffin v. Interurban Ry. Co., 180 N. Y. 538, 72 N. E. 1142. In any event, I think we must for the present, at least, hold that cumulative penalties are recoverable under this statute. In the case of People v. Niagara Fruit Co., supra, there was a recovery of two penalties for two separate sales of adulterated vinegar and eight penalties for falsely marking eight packages included in these sales.

It is true this question is not discussed in the opinion in this court; but that it was at least a matter of consideration by the learned referee who heard that case appears from the following extract from his opinion then delivered:

"In my opinion the act of manufacturing and selling as 'cider vinegar' adulterated vinegar which simulated cider vinegar, but was not cider vinegar, constitutes but one offense in the case of each shipment, for the reason that each transaction was an entirety. The marking of the barrels 'cider vinegar,' however, seems to be a distinct offense under the statute, and the marking of each one is a separate offense."

This was followed by an award of separate penalties for each offense.

The recovery of judgment against the individual defendants, who occupied, as to the defendant corporation, relations practically the same as the individual defendants did in the Niagara Fruit Co. Case, is warranted under the holding in that case.

Judgment affirmed, with costs. All concur, except McLENNAN, P. J., who dissents in an opinion.

MCLENNAN, P. J. (dissenting). This appeal squarely presents the question: Is the plaintiff entitled to recover cumulative penalties, 15 in number, of $100 each, for violation of the agricultural law under the facts and circumstances disclosed by the evidence in this case? It is uncontradicted that on the 3d day of September, 1901, the defendants had in their factory or warehouse 75 barrels of vinegar which they had manufactured. Such 75 barrels were stored all together as one lot, and on the date aforesaid had all been sold to the Eimon Mercantile Company of West Superior, Wis., through an agent of defendants who resided in Detroit, Mich. On the following day (September 4, 1901) all of said 75 barrels were shipped to said purchaser. On the 3d day of September, 1901, the agents or inspectors of the plaintiff went to the factory of the defendants, and took samples of vinegar from each of 9 barrels, selected at random from said lot of 75 barrels, and the analysis which was made of the samples taken from each of such 9 barrels indicated that the vinegar contained therein was adulterated, and it was so found by the learned referee. Each of said 75 barrels, as well as the 9 barrels from which the samples were taken and analyzed, were branded, as found by the ref"New York State Pure Cider Vinegar." We will assume that the vinegar contained in the 9 barrels from which samples were

eree:

taken and which were analyzed, as found by the referee, contained adulterated vinegar, and it must follow that the whole of the 75 barrels contained exactly the same kind of vinegar, because the 9 barrels were selected, as before said, at random and to indicate the character of the vinegar contained in the 75 barrels, which constituted a single lot and were stored together, and had, as we have seen, all been sold as one lot to the Wisconsin firm or corporation, and was delivered to such concern on the day following the taking of the samples by the agents or inspectors of the plaintiff.

The referee has found that the defendants are liable for a penalty of $100 for each barrel of such vinegar, 9 in all, which contained, as found and as we will assume was the fact, adulterated vinegar and was put in such 9 barrels, each branded as above stated. It is also uncontradicted that on the 24th day of September, 1901, the defendants had in their possession and in their factory or warehouse a lot of vinegar, comprising 63 barrels, all being stored on the floor together and making a single lot. There is no evidence which tends to show that such lot of 63 barrels of vinegar had been sold, offered for sale, or even ready for sale, except as a single lot. But such 63 barrels were in the factory or warehouse of the defendants, all together, on the 24th day of September, 1901, and on that day the agents or inspectors of the plaintiff went there and selected from such lot of 63 barrels samples from 6 barrels. Upon analysis of such six samples, the referee has found that each contained adulterated vinegar within the provisions of the agricultural law, and that each of such barrels were branded as were the others, "New York State Pure Cider Vinegar," and upon those facts the referee awarded to the plaintiff a penalty of $100 each for such 6 alleged violations, which, together with the 9 above referred to, made 15 penalties of $100 each, aggregating $1,500, the amount of the judgment awarded against the defendants. I think, at the most, only two penalties of $100 each should have been recovered by the plaintiff one because of the 75 barrels which it sold to the Wisconsin concern and one because of the fact that the defendants had a lot comprising 63 barrels of vinegar in their possession which was adulterated, but which had not been sold or offered for sale. It seems to me that the facts relating to the first 75 barrels, 9 of which were selected to test the quality of the entire 75 barrels, and which were found to contain adulterated vinegar, only constituted a single transaction and a single violation of the agricultural law, and that the same is true of the lot of 63 barrels, 6 of which were selected at random by the agents or inspectors of the plaintiff, although such 63 barrels had not been sold. or offered for sale, so far as appears by the evidence, except as a single lot. It does not seem possible that it was intended by the Legislature in passing the agricultural law that the agents or inspectors of the state should have discretion to impose a single penalty of a hundred or more upon a manufacturer of vinegar, depending only upon the number of barrels in any lot from which they might determine to take samples for analysis.

In the case at bar there were 138 barrels of vinegar all told. Is it possible that, under the provisions of the agricultural law, the agents

of the state might, if so inclined, have taken samples from each barrel, analyzed the same, and, if found to be the same as the samples taken which concededly were adulterated, thus lay the basis for imposing a fine of $13,800 against the defendants? I do not think that it was the intention of the Legislature to place such discretion in the agents or inspectors of the state employed under such agricultural law. Of course, if they were authorized to take samples from and analyze one barrel of vinegar out of the 75 barrels, or one barrel of the 63 barrels, and make such analysis the basis of recovery as for a single barrel, they were equally authorized to take such sample from each one of the 138 barrels, and make the analysis of them the basis of a penalty of $100, which, as we have seen, would in this case amount to $13,800. I think the law was directed against specific transactions; in other words, to prohibit the manufacturer from selling to a purchaser a particular quantity or lot of adulterated vinegar, no matter how the same was put up or branded. In the first case disclosed by the evidence the defendants had sold 75 barrels of vinegar. Samples had been taken from 9 barrels which disclosed, we will assume, that the vinegar contained in such barrels was adulterated. Is it possible that the agricultural law was framed in such fashion so that, if the contents of 75 barrels from which the 9 were selected for the purpose of analysis had been placed in one hogshead or tank, and branded as "New York State Pure Cider Vinegar," only one penalty could be recovered, but that because it was divided up and placed in barrels, each of which was so branded, 75 penalties could be recovered? It seems to me that the proposition is absurd. The same suggestion is pertinent as to the lot of 63 barrels. all constituted one lot, was in the warehouse or factory together. It was there all alike for the purpose of sale or otherwise. It does not seem to me to be possible that the Legislature intended that the agents of the state should be clothed with the power of determining whether the manufacturer of such vinegar should be liable to a penalty of $100 for each of such barrels, depending only upon their discretion as to how many of the same they should take samples from and analyze. The extreme of the proposition is illustrated by the suggestion that if the defendants had put 138 barrels of vinegar in packages containing a gallon each, and the agents of the state had taken samples from and analyzed each of such packages, we would have a judgment here of over $43,000 against the defendants. I do not believe it was intended by the Legislature to clothe the agents or inspectors of the state, appointed under the agricultural law, with such discretion as would enable them to determine whether a manufacturer of vinegar should be liable for one penalty of $100 or of 1,000 or more of such penalties, and in such an amount as might mean ruin to any manufacturer of vinegar.

It

It seems to me that, under the fair interpretation of the agricultural law, the defendants, at most, were only liable to two penalties of $100 each, one for having sold the lot of 75 barrels to the Wisconsin concern, and the other for having in its possession the 63 barrels which had not been sold or offered for sale, and that if a manufacturer makes a quantity of adulterated vinegar in violation of the

statute, sells it as one lot and in one transaction, he is only liable for one penalty, no matter how many barrels or packages he may employ to transport such vinegar to the purchaser, and also that if a manufacturer makes a lot of adulterated vinegar and stores it all together, which is conceded to be of the same character, and puts it into 63 different barrels for storage, and such barrels falsely indicate that the contents of each is pure cider vinegar, when, in fact, it is adulterated, he is not liable for 63 distinct penalties because of such transaction. Of course, in such case, if he had sold one of the barrels of vinegar to one party and another to another and still another to a third, he would be liable for three penalties; but, in case he had sold three barrels to each of such three parties, he would only be liable for three penalties.

I think that the decisions of the Court of Appeals are decisive of the question here involved. Cox v. Paul, 175 N. Y. 328, 67 N. E. 586; Sturgess v. Spofford, 45 N. Y. 446; Whitaker v. Masterton. 106 N. Y. 277, 12 N. E. 604; Washburn v. McInroy, 7 Johns. 134; Fisher v. New York Central & Hudson River Railroad Company, 46 N. Y. 644; U. S. Condensed Milk Company v. Smith, 116 App. Div. 15, 101 N. Y. Supp. 129; People v. Buell, 85 App. Div. 141, 83 N. Y. Supp. 143; and the noted case of United States v. Standard Oil Company of Indiana (C. C. A.) 164 Fed. 376. The decisions in all of these cases and in others to which attention might be called is to the effect that cumulative penalties may not be imposed except the language of the statute clearly and unmistakably indicates that such was the intention of the Legislature. The sections of the agricultural law (50, 51, and 52) in my opinion are not susceptible of such construction under facts such as are shown to exist in this case.

I therefore conclude that the plaintiff was only entitled to recover two penalties, or a judgment for $200, and that, therefore, the judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide event, unless the plaintiff stipulates that the judgment be reduced to $200, in which event the judgment in that amount should be affirmed, without costs.

(133 App. Div. 457.)

SMITH et al. v. SMITH.

(Supreme Court, Appellate Division, Third Department. June 24, 1909.) JUSTICES OF THE PEACE (§ 164*)—APPEAL-RETURN-AMENDED PLEADINGS.

An amended complaint, filed with a justice of the peace after the trial, cannot, in the absence of express stipulation of the parties, be included in the return on appeal to the County Court; and this irrespective of whether any other proof could be offered thereunder than under the original complaint.

[Ed. Note. For other cases, see Justices of the Peace, Dec. Dig. § 164.*] Kellogg, J., dissenting.

Appeal from Montgomery County Court.

Action in a justice's court by Addison Smith and another against: Robert H. Smith. Judgment for plaintiffs, and defendant appealed

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

to the County Court, and thereafter moved for a corrected return. From an order denying the same, he appeals. Reversed, and motion granted.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Charles B. Hane, for appellant.

H. M. Eldredge, for respondents.

SMITH, P. J. The action was brought in Justice's Court. The plaintiffs and the defendant had made some agreement by which the plaintiffs were to take a farm and pay certain debts. There was a claim against the defendant of about $235, which it was claimed the plaintiffs were liable for under this agreement, and the plaintiffs were sued thereupon and made default. Judgment was obtained and execution has been issued. The plaintiffs now claim that part of this amount was a debt that was not properly for them to pay, but was the defendant's debt, and therefore have sued the defendant to recover the same, and in Justice's Court recovered a judgment of $125, together with costs. The defendant has appealed to the County Court for a new trial.

In Justice's Court the defendant put in an amended answer, and the plaintiffs' attorney stated that he might want to put in an amended complaint. No amended complaint, however, was then served, and after the judgment plaintiffs did file with the justice an amended complaint. This amended complaint has been returned by the justice to the County Court as properly in the case and part of the pleadings upon which the case must be there tried. The defendant has moved for a corrected return, in which he sets forth a letter from the justice stating that this amended complaint was received some days after the trial. From an order of the County Court denying the motion for an amended return this appeal is taken.

The motion should have been granted. If the plaintiffs had desired to amend their complaint, it should have been amended at the trial, either orally or in writing. The court cannot recognize amended pleadings filed after a trial, except upon the express stipulation of the parties. It may be that under the amended complaint no other proof could be offered than under the original complaint; but of this the court will not inquire. The defendant is entitled to have returned the pleadings upon which the case was tried in the court below, and the court will not stop to consider how far he may be prejudiced by spurious pleadings returned. The order should therefore be reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. All concur, except KELLOGG, J., who dissents.