Opinion
June Term, 1903.
E.H. Hanford and E.A. Mackey, for the appellant.
Andrew G. Washbon, for the respondent.
Section 20 of the Agricultural Law (Laws of 1893, chap. 338) defines certain words used in article 2 of said law. That part of sections 22 and 23 of said Agricultural Law (as respectively amd. by Laws of 1900, chap. 101, and Laws of 1901, chap. 429) material in the determination of the question here presented is as follows:
"§ 22. * * * No person shall sell or exchange, or offer or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk. * * *
"§ 23. * * * No person shall sell, supply, or bring to be manufactured, to any butter or cheese factory any milk diluted with water, or any unclean, impure, unhealthy, adulterated or unwholesome milk, or milk from which any of the cream has been taken, except pure skim milk to skim-cheese factories. * * *."
It is provided by section 37 of said Agricultural Law (as amd. by Laws of 1901, chap. 656) as follows: "Every person violating any of the provisions of the Agricultural Law shall forfeit to the People of the state of New York the sum of not less than fifty dollars nor more than one hundred dollars for the first violation, and not less than one hundred dollars or more than two hundred dollars for the second and each subsequent violation. * * * When the violation consists of the sale or the offering or exposing for sale or exchange of any prohibited article or substance, the sale of each one of several packages shall constitute a separate violation. * * *"
It should not be held that a complaint unites two or more causes of action without separately stating and numbering the same when it is necessary to go into an elaborate argument for the purpose of showing that it is possible to prove more than one cause of action under the complaint as stated. ( Pope v. Kelly, 30 App. Div. 253; Hatch v. Matthews, 9 Misc. Rep. 307.)
If the allegations of the complaint are indefinite and uncertain the defendant's remedy was by motion to require the same to be made definite and certain by amendment. (Code Civ. Proc. § 546.)
A sale of several cans of impure and adulterated milk at one time and place and to one person as a single transaction should be alleged in the complaint as one cause of action. The fact that the statute provides that the sale of each one of several packages shall constitute a separate violation does not require a separate action or statement of cause of action for each particular can of milk sold.
The evident intention of the statute in declaring that the sale of each one of several packages shall constitute a separate violation was to remove any question as to whether more than one penalty could be recovered for a single sale consisting of two or more packages. It is declaratory of the manner of computing the amount of the recovery. If it is necessary to allege the facts showing that the plaintiff is entitled to recover the penalty in separate causes of action for each package contained in a single sale it would in many instances make a complaint of very great length and make ridiculous the rules of pleading.
Where several penalties are incurred by trespassing ( People v. M'Fadden, 13 Wend. 396) or by failure to do some act required by statute, and such failure has continued for a sufficient length of time to incur many penalties ( Longworthy v. Knapp, 4 Abb. Pr. 115), it is not necessary in a suit therefor to separate the statement thereof into innumerable causes of action. As said in People v. M'Fadden ( supra), "To require a count for each penalty would defeat the great object of the Legislature of reducing the pleadings to the simplest form." And in substance in People v. Tweed ( 63 N.Y. 194) that the Code was designed to simplify pleadings, and that to require a separate statement of matters constituting an entire transaction would lead to great and tedious prolixity.
The reason for the decision in Wray v. Pennsylvania R.R. Co. (19 N.Y. St. Repr. 53) was therein stated to be "It is very doubtful whether under the decisions in Fisher v. The N Y Central R.R. Co., 46 N.Y. 644; Foote v. Same, 50 id. 693; and Barker v. Same, 61 id. 655, the plaintiff would be entitled to recover more than one penalty for the alleged violations of the act, all committed prior to the commencement of this action. If so the defendant has a right to have the several alleged causes of action definitely set forth so that it may demur thereto or move for such other relief in respect to the same as the law entitles it to."
Fisher v. N.Y.C. H.R.R.R. Co.
Foote v. N.Y.C. H.R.R.R. Co.
Barker v. N.Y.C. H.R.R.R. Co.
No such reason exists in this case. The plaintiff claims that the violation consisted of a single sale and insists that the complaint should be so construed. The complaint is loosely drawn, but from it we conclude that the plaintiff intended to allege but one exposure for sale, offering for sale, and sale of one quantity of milk consisting of five packages. Whether such sale, if established, would entitle the plaintiff to one or several penalties, will depend upon the proof. The order should be affirmed, with ten dollars costs and disbursements.
PARKER, P.J., CHESTER and HOUGHTON, JJ., concurred on the ground that there is but a single cause of action alleged in the complaint for a single violation of the statute under which only one penalty can be recovered; SMITH, J., dissented.
Order affirmed, with ten dollars costs and disbursements.