Shearn, J.:
The defendant maintains at 529 West Twenty-eighth street a station from which milk' is distributed to its drivers for delivery to customers on various wagon routes. At six-thirty a. m. on the morning of February 26, 1917, one Price, an inspector connected with the State Industrial Commission, found a thirteen-year old boy carrying a wicker basket containing several quart bottles of milk into premises 306 West Forty-first street. The milk belonged to the defendant, came from defendant’s establishment or station at 529 West Twenty-eighth street, and was being delivered from one of its wagons, driven by one Schmidt, who had been in the employment of the defendant for several years. Schmidt, without the actual knowledge of the defendant, had personally employed the boy to help him, and the boy had been working with him for six months. Schmidt paid the boy two dollars and fifty cents a week out of his own wages, which were sixteen dollars a week. Schmidt claimed when questioned by the inspector, [617]*617and on the trial, that he employed the boy to watch the wagon, it appearing that thefts of milk bottles were frequently made from wagons left in the street by drivers who had to go into houses to deliver milk. On the trial it was shown, however, that the drivers of wagons were not charged by the company for milk that was lost or stolen from the wagons except upon occasions when it appeared that the loss was one for which the driver was clearly at fault. Thus the employment of the boy to help deliver milk and watch the wagon operated to benefit the defendant company, for it tended to minimize the loss of milk. The defendant had a rule which was posted in its places of business and was contained in the drivers’ lists of customers, providing: “ Drivers must not under any circumstances allow any person not in the employ of this company to assist them in any way or to ride on their wagon. Any violation of this rule will be sufficient cause for dismissal.” The company-knew quite well that its drivers violated this rule and claimed that in order to prevent violations thereof it employed inspectors to go out on the routes of various drivers and see whether they were obeying the rule. Not infrequently the inspectors found the rule- violated, but in no case did the company ever discharge a driver for a violation of the rule.
The defendant claims that the judgment is unjustified in fact and law, on the ground that the defendant neither employed the boy nor permitted him to work in connection with its establishment. The defendant contends that while a corporation is liable for the acts of its officers, it is not liable criminally for the acts of mere employees which acts are forbidden by the company itself and done without its knowledge or consent.
The first and underlying question is, whether this offense is malum in se or malum prohibitum. It was distinctly held in People v. Taylor (192 N. Y. 398) that a violation of a similar section of the former Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 70, as amd. by Laws of 1903, chap. 184), relating to factories, which was a police regulation intended for the protection of the public health, was not malum in se, but malum prohibitum. It was further held in People v. D’Antonio (150 App. Div. 109, 111) that in the case of an act
[618]*618malum prohibitum intent forms no part of the offense. (See, also, People v. West, 106 N. Y. 293, 296; People v. Werner, 174 id. 132, 133, 134; Commonwealth v. Mixer, 207 Mass. 141, 142, 143; Shevlin-Carpenter Co. v. Minnesota, 218 IT. S. 57, 67-70.)
The purpose and effect of a statute such as this is to impose upon the owner or proprietor of a business the duty of seeing to it that the condition prohibited by the statute does not exist. He is bound at his peril so to do. The duty is an absolute one, and it remains with him whether he carries on the business himself or intrusts the conduct of it to others. The principle was well stated by Cooley, C. J., in People v. Roby (52 Mich. 577): “It will be observed that the requirement that the saloons and other places mentioned shall be closed is positive. The next section of the statute provides that any person who shall violate this, among other provisions, shall be deemed guilty of a misdemeanor, and shall be punished as therein prescribed. In terms, then, the penalties of the statute are denounced against the person whose saloon or other place for the sale of intoxicating drinks is not kept closed, and no other fact is necessary to complete the offense. * * * The section under which Roby is prosecuted makes the crime consist, not in the affirmative act of any person, but in the negative conduct of failing to keep the saloon, etc., closed. * * * Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.”
After discussing numerous authorities, the learned judge continued: “But the statute requires the proprietor at his peril to keep the bar closed. The purpose in doing so is that persons shall not be there within the reach of temptation. This respondent did not keep his bar closed and he has therefore disobeyed the law. And he has not only disobeyed the law, but the evil which the law intends to guard against has resulted; that is to say, there has been, either with or without his assent,— it is immaterial which,— a sale of intoxicating liquors to a person who took advantage of the bar being open to enter it.”
[619]*619The statute under consideration is not of the type making the master liable for an act of his servant, where it is necessary to show that the act was done by the servant in the course of his employment or in furtherance of his master’s business. This statute casts a duty upon the owner or proprietor to prevent the unlawful condition, and the liability rests upon principles wholly distinct from those relating to master and servant. The basis of liability is the owner’s failure to perform, the duty of seeing to it that the prohibited condition does not exist. It is not for the affirmative act of another that he is responsible, but for his own negative conduct consisting of his failure to fulfill the obligations imposed upon him. If any owner of a factory or business could escape liability for a violation of the provisions of the Labor Law by showing that the violation was committed by an employee and without the owner’s personal knowledge, the Labor Law would be so much waste paper.
But even if the liability of the defendant in this case were based upon that of a master for the consequences of an act of his servant, a clear case was made out. It is no answer to the charge to say that the driver hired the boy in the furtherance of his own purposes. The driver was conducting no independent business of his own. The only business that was being done was the defendant’s business of delivering milk. When it is said that the employee must at the time complained of be acting within' the scope of his employment and in the furtherance of his master’s business, that does not mean that the prohibited act must have been one. calculated to further the master’s business. It merely means that the act must be done by the employee in the course of and while furthering his master’s business.
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Shearn, J.:
The defendant maintains at 529 West Twenty-eighth street a station from which milk' is distributed to its drivers for delivery to customers on various wagon routes. At six-thirty a. m. on the morning of February 26, 1917, one Price, an inspector connected with the State Industrial Commission, found a thirteen-year old boy carrying a wicker basket containing several quart bottles of milk into premises 306 West Forty-first street. The milk belonged to the defendant, came from defendant’s establishment or station at 529 West Twenty-eighth street, and was being delivered from one of its wagons, driven by one Schmidt, who had been in the employment of the defendant for several years. Schmidt, without the actual knowledge of the defendant, had personally employed the boy to help him, and the boy had been working with him for six months. Schmidt paid the boy two dollars and fifty cents a week out of his own wages, which were sixteen dollars a week. Schmidt claimed when questioned by the inspector, [617]*617and on the trial, that he employed the boy to watch the wagon, it appearing that thefts of milk bottles were frequently made from wagons left in the street by drivers who had to go into houses to deliver milk. On the trial it was shown, however, that the drivers of wagons were not charged by the company for milk that was lost or stolen from the wagons except upon occasions when it appeared that the loss was one for which the driver was clearly at fault. Thus the employment of the boy to help deliver milk and watch the wagon operated to benefit the defendant company, for it tended to minimize the loss of milk. The defendant had a rule which was posted in its places of business and was contained in the drivers’ lists of customers, providing: “ Drivers must not under any circumstances allow any person not in the employ of this company to assist them in any way or to ride on their wagon. Any violation of this rule will be sufficient cause for dismissal.” The company-knew quite well that its drivers violated this rule and claimed that in order to prevent violations thereof it employed inspectors to go out on the routes of various drivers and see whether they were obeying the rule. Not infrequently the inspectors found the rule- violated, but in no case did the company ever discharge a driver for a violation of the rule.
The defendant claims that the judgment is unjustified in fact and law, on the ground that the defendant neither employed the boy nor permitted him to work in connection with its establishment. The defendant contends that while a corporation is liable for the acts of its officers, it is not liable criminally for the acts of mere employees which acts are forbidden by the company itself and done without its knowledge or consent.
The first and underlying question is, whether this offense is malum in se or malum prohibitum. It was distinctly held in People v. Taylor (192 N. Y. 398) that a violation of a similar section of the former Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 70, as amd. by Laws of 1903, chap. 184), relating to factories, which was a police regulation intended for the protection of the public health, was not malum in se, but malum prohibitum. It was further held in People v. D’Antonio (150 App. Div. 109, 111) that in the case of an act
[618]*618malum prohibitum intent forms no part of the offense. (See, also, People v. West, 106 N. Y. 293, 296; People v. Werner, 174 id. 132, 133, 134; Commonwealth v. Mixer, 207 Mass. 141, 142, 143; Shevlin-Carpenter Co. v. Minnesota, 218 IT. S. 57, 67-70.)
The purpose and effect of a statute such as this is to impose upon the owner or proprietor of a business the duty of seeing to it that the condition prohibited by the statute does not exist. He is bound at his peril so to do. The duty is an absolute one, and it remains with him whether he carries on the business himself or intrusts the conduct of it to others. The principle was well stated by Cooley, C. J., in People v. Roby (52 Mich. 577): “It will be observed that the requirement that the saloons and other places mentioned shall be closed is positive. The next section of the statute provides that any person who shall violate this, among other provisions, shall be deemed guilty of a misdemeanor, and shall be punished as therein prescribed. In terms, then, the penalties of the statute are denounced against the person whose saloon or other place for the sale of intoxicating drinks is not kept closed, and no other fact is necessary to complete the offense. * * * The section under which Roby is prosecuted makes the crime consist, not in the affirmative act of any person, but in the negative conduct of failing to keep the saloon, etc., closed. * * * Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.”
After discussing numerous authorities, the learned judge continued: “But the statute requires the proprietor at his peril to keep the bar closed. The purpose in doing so is that persons shall not be there within the reach of temptation. This respondent did not keep his bar closed and he has therefore disobeyed the law. And he has not only disobeyed the law, but the evil which the law intends to guard against has resulted; that is to say, there has been, either with or without his assent,— it is immaterial which,— a sale of intoxicating liquors to a person who took advantage of the bar being open to enter it.”
[619]*619The statute under consideration is not of the type making the master liable for an act of his servant, where it is necessary to show that the act was done by the servant in the course of his employment or in furtherance of his master’s business. This statute casts a duty upon the owner or proprietor to prevent the unlawful condition, and the liability rests upon principles wholly distinct from those relating to master and servant. The basis of liability is the owner’s failure to perform, the duty of seeing to it that the prohibited condition does not exist. It is not for the affirmative act of another that he is responsible, but for his own negative conduct consisting of his failure to fulfill the obligations imposed upon him. If any owner of a factory or business could escape liability for a violation of the provisions of the Labor Law by showing that the violation was committed by an employee and without the owner’s personal knowledge, the Labor Law would be so much waste paper.
But even if the liability of the defendant in this case were based upon that of a master for the consequences of an act of his servant, a clear case was made out. It is no answer to the charge to say that the driver hired the boy in the furtherance of his own purposes. The driver was conducting no independent business of his own. The only business that was being done was the defendant’s business of delivering milk. When it is said that the employee must at the time complained of be acting within' the scope of his employment and in the furtherance of his master’s business, that does not mean that the prohibited act must have been one. calculated to further the master’s business. It merely means that the act must be done by the employee in the course of and while furthering his master’s business. In the case at bar, as above pointed out, while the employment of the boy was primarily to serve the driver’s personal ends, it was not only done in the course of and while furthering the defendant’s business, but was an act calculated to benefit the defendant by minimizing its losses.
The proof shows that the defendant permitted the violation of the statute. “ Permit ” in such a case does not mean to consent to with knowledge; it is synonymous with suffering an act to be done, in the sense of being negligent or indifferent in [620]*620respect to the violation. Here it is shown that this corporation knew that it was a common occurrence for its drivers to violate the statute. Yet all that it did was to post a notice, not directed particularly against the employment of children, and to employ inspectors. Any reasonably vigilant inspection would have shown the violation by the driver Schmidt, for he had been employing this boy regularly for six months. Not only were no measures taken calculated to be effective to prevent a violation of the statute, but it was practically encouraged by the failure of the company to impose any fine or disciplinary measures upon drivers who were discovered in violation of the law. The case of People v. Hudson Valley Construction Co. (217 N. Y. 172), relied upon by the defendant for its proposition that a corporation is not liable criminally for the acts of mere employees, not officers, which acts are forbidden by the company itself and which acts are done without its knowledge or consent, is not in point, that being a case of larceny by pretense, where intent was a necessary element of the crime. It may be noted that this case is authority for the proposition that when wrongful acts of. employees performed in the service of a corporation are methodical and continuous, the sanction of the corporation may be inferred.
It, therefore, appears that, whether the liability be based upon the absolute duty of the owner to prevent the employment of boys under age in connection with the owner’s business, or upon the master’s responsibility for the act of his servant in. the course of his employment in the master’s business, which act was suffered or permitted by the negligence or indifference of the master, the judgment of conviction was right and should be affirmed.
Smith, J., concurred; Page, J., dissented.
Scott, J.:
The statute which defendant has been convicted of violating provides that “ No child under the age of fourteen years shall be employed or permitted to work in or in connection with any mercantile or other business or establishment specified in the preceding section.” (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 162, as amd. by Laws of 1911, chap. 866.)
[621]*621A reference to the preceding section shows that the work which the boy Attilio was engaged in was one of the prohibited occupations. (Labor Law, § 161, as amd. by Laws of 1915, chap. 386.)
There are two things which the statute forbids: First, the employment of a boy under the prescribed age, and second, permitting such a boy to work.
The duty cast upon the proprietor of an establishment or business referred to in section 161 of the Labor Law is, therefore, two-fold. He may not employ or consent to the employment of a boy under fourteen years of age, nor must he permit such a boy to work.
The evidence shows clearly that the boy Attilio did work in connection with the defendant’s business in delivering milk, and the defense was based upon the claim that defendant did not employ him, but that defendant’s driver employed him in order to lighten his own work. Assuming, though not deciding, that this constituted a defense against the charge of “ employing,” I think that the evidence fully justified the conviction of defendant of violating the statute in “ permitting ” the boy “ to work.”
It was clearly shown that it was well known to defendant’s superior officers that it was quite customary for its drivers to employ boys to work as the Attilio boy was employed and it is equally' clear that no effective steps were taken to prevent the practice, which even when discovered was invariably condoned. This was a direct encouragement to the drivers to persist in the practice, and I think justified the conviction of the defendant of having violated the statute in permitting the boy to work.
Clarke, P. J., concurred.