Opinion
December 30, 1909.
James C. Fursman, for the appellant.
John F. Brady [ Charles H.F. Reilly of counsel], for the respondent.
The County Court has no jurisdiction of an original action brought therein unless the defendant is a resident of the county. (N.Y. Const. art. 6, § 14; Code Civ. Proc. § 340.) Consent of the parties will not confer jurisdiction where the statute or Constitution has actually denied it. In this case, therefore, if the defendant had not been a resident of the county of Albany the judgment against him could not stand.
The defendant was in fact a resident of that county and, therefore, the plaintiff had the right to bring this action against him to recover the penalties sought. As the defendant was a resident of the county we are remitted to a simple question of practice and may safely assume that the plaintiff should have alleged in its complaint the facts showing that the County Court could entertain the action.
A question of practice may be waived, and a suitor by his laches may put himself in a position where he cannot take advantage of a mistake in the practice of his adversary. In Bunker v. Langs (76 Hun, 543) the defendant was actually a resident of the county, but the complaint in the County Court did not allege that fact. The defendant answered without raising any question as to the omission in the complaint, and it was held that he had waived the question and was not able to take advantage of it upon the trial. That case establishes that the defendant has waived in this case the right to take any advantage on account of the omission in the complaint.
In Henneke v. Schmidt ( 121 App. Div. 516) the defendant was a resident of the county, but the complaint did not allege the fact, and upon the trial the court dismissed the action, holding that it had not jurisdiction to try it or to allow the plaintiff to amend his complaint. The Appellate Division reversed the judgment, holding the trial court had the power to grant the amendment and should have done so. In effect that case treats the matter as we do, as one of practice if the defendant is in fact a resident of the county.
If the question was waived it was not error to receive evidence that the defendant resided in the county, and if necessary the court should have permitted the amendment to the complaint which the plaintiff asked and to which the defendant objected. The defendant is not, therefore, in a position to urge that he has been prejudiced with reference to these matters.
The defendant had two cans upon his wagon from which he was evidently selling milk. There were two or three other cans which had no milk in them. The sample tested was taken from but one can. The appellant contends that this was not a fair test, and that if the test is to be compared with the herd sample, all the milk from the herd which the defendant had at the time should have been mixed and a sample taken from both cans. He relies upon People v. Wiard ( 61 App. Div. 612) in which it was held that the sample taken from only part of the product delivered by the producer at one time to a single purchaser will not afford the basis for an action under the Agricultural Law. Here the defendant was not only a producer but a vender, and it is improbable that he sold to the same purchaser a part from one can and a part from the other. Evidently each sale was made from a single can. If the producer had brought twenty cans to a dealer and sold and delivered them as one transaction, it is probable that the sample should represent the milk in each and all the cans; but if a dealer and producer has twenty cans and sells from one, the sample from that one is sufficient.
Appellant contends that the complaint does not allege a cause of action because it does not set forth the analysis of the first sample and then state that a herd sample had been taken and that the first sample was not as good as the herd sample. The crime is in selling impure and adulterated milk under sections 20 and 22 of the Agricultural Law, and the complaint alleged a violation of those sections. (See Laws of 1893, chap. 338, § 20; Id. § 22, as amd. by Laws of 1907, chap. 241.) Section 12 (as amd. by Laws of 1898, chap. 557) provides for inspection, and fixes the standard for pure milk, and provides that if the herd sample is as deficient as the sample tested, there shall be no prosecution. Section 12 is a means of furnishing evidence by which it can be proved that the milk was adulterated, impure and unwholesome and, therefore, the tests need not be alleged. This is held in People v. Woodbeck ( 55 App. Div. 277), which I think is controlling upon that point.
Appellant contends that a conviction was had upon other evidence than the chemical analysis provided by the statute. Plaintiff's experts were permitted to show that they were familiar with the lactometer and its use and were experts upon that subject; that it gave the specific gravity of this milk as ninety-four at sixty-four degrees temperature, which indicated that it was not normal milk. I do not think that the plaintiff is confined to the chemical analysis provided by section 12 of the statute, but that it was permitted in any proper way to show that the milk was impure and adulterated. Section 12 is intended to furnish a more definite and exact line of proof, but I think any evidence tending to show that milk was not normal milk is some evidence for consideration by the jury.
The judgment and order should, therefore, be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.