Robson, J.:
Defendant, the Albion Cider and Vinegar Company, is a domestic corporation engaged in the manufacture and sale of cider and vinegar at Albion, M. Y. The other defendants in the order in which they are named in the title to the action are respectively the president and general manager and the manager having immediate charge of the plant of the corporation. The action was properly brought and prosecuted in the name of the People by the officers who are clothed with appropriate authority for that purpose.
The judgment recovered is made up of fifteen separate penalties of $100 each for keeping for sale at specified dates “one certain barrel of adulterated vinegar, as and for cider vinegar, which had been theretofore manufactured for sale by said defendants and which contained artificial coloring matter, was a product in imitation or semblance of cider vinegar and which was not made exclusively from pure apple juice,” and for marking or branding “ as and for cider vinegar said certain barrel containing such adulterated and imitation vinegar by branding the same with the words ‘blew York-State Pure Cider Vinegar,’pH in violation of,sections 50, 51 and 52 of the Agricultural Law.”
Defendants urge that the referee erred in allowing an amendment of the complaint, which permission was given on an application made at the final submission of the case. Defendants insist that the application should have been denied for laches. The right to make application for amendment of the pleadings was expressly reserved by stipulation. If the referee had the power to grant the amend-[867] meat, the application, was made in time. The referee, of course, had the same power a court has to permit an amendment of a pleading upon the trial of the action. (Code Civ. Proc. § 1018.) This includes the power to amend a pleading by conforming it to the facts proved where the amendment does not substantially, change the claim or defense. (Code Civ. Proc. § 723.).
The original complaint charged defendants with manufacturing for sale and keeping and offering for sale adulterated vinegar, and with falsely branding such vinegar as “ Pure Cidér Vinegar.” As a part of such vinegar the complaint referred specifically to the fifteen barrels from which the fifteen samples in question were taken and referred to each sample by its appropriate number. The complaint as amended separately stated and numbered as separate causes of action a violation of the statute in regard to each of these fifteen barrels, with two counts for each. No fact is stated in the amended complaint, and no cause of action therein alleged, which do not appear in the original complaint. Probably it was unnecessary to amend the original pleading, as a recovery on a complaint identical in the form with this, mutatis mutanMs, was sustained by this court and later by the Court of Appeals. (People v. Niagara Fridt Co., 75 App. Div. 11; affd., 173 N. Y. 629.) In any event the effect of the amendment was simply to separately number and state in appropriate counts the several causes of action alleged in gross in the original complaint, and an excision therefrom of much extraneous and unnecessary matter. The amendment was proper, and within the power of the referee to allow, as he did.
Much of appellants’ argument is expended in an effort to show that plaintiff failed to prove that the vinegar in these fifteen barrels was adulterated within the meaning of the statute. The finding of the referee is that the vinegar in each barrel “ contained artificial coloring matter, was a product in imitation or semblance óf cider vinegar and which was not made exclusively from pure apple juice.” Appellants urge that there is no proof, or not sufficient proof, that the vinegar contained artificial coloring matter, and that, if there is any evidence that it contained other substances than pure apple juice, these are accounted for by a possible addition of water containing, perhaps, no more than the normal amount of sodium, etc., ordinarily found in water recognized, or usually [868] considered, as pure. They further say that the addition of water to an extent which does not reduce the percentage of acetic acid below the statutory requirement is not a .violation of-the statute. (People v. Heinz Co., 90 App. Div. 408.) Much of the evidence, as to the results of' the different tests -made, indicates only the addition of water.' But ‘even if we are bound .to accept the doctrine-that the addition of water without explanation of the propriety, or necessity, of such addition, is not an adulteration'within the statute, there is, I think,'sufficient evidence that each barrel of vinegar in question did contain artificial coloring matter of some kind, and that the vinegar, for that reason alone, was adulterated, and not cider vinegar within the definition of the statute. Two recognized tests for artificial coloring matter appear to be the fuller’s earth test, and the acetate of lead test. Each of these was applied by the witness Hill to samples examined by him and he testifies that they disclosed the presence of added coloring matter. The other chemist, Miller, who examined eight-other samples,, says the vinegár Was artificially colored. It is true he made, the fuller’s earth test on only one of the samples examined by him, and that disclosed such -coloring.. But his examination of the other samples by the acetate of lead test showed results, which clearly indicated, as sho-wii by Hill’s and Mosher’s testimony, conditions that would be accounted for by the presence of added coloring matter. In view of the’evidence of the People’s chemists that such coloring matter had been added, and of the somewhat evasive and unsatisfactory evidence of defendant’s chemist, that he found none he identified, the evidence of defendant' Doyle, limited as it was to a statement that; no injurious Or deleterious' matter had been added, taken in Connection with the failure to call defendant’s employees to. testify as to the'composition of the vinegar, and expressly that" no. coloring' matter had been added, I think the finding of the referee as to that fact was correct.
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Robson, J.:
Defendant, the Albion Cider and Vinegar Company, is a domestic corporation engaged in the manufacture and sale of cider and vinegar at Albion, M. Y. The other defendants in the order in which they are named in the title to the action are respectively the president and general manager and the manager having immediate charge of the plant of the corporation. The action was properly brought and prosecuted in the name of the People by the officers who are clothed with appropriate authority for that purpose.
The judgment recovered is made up of fifteen separate penalties of $100 each for keeping for sale at specified dates “one certain barrel of adulterated vinegar, as and for cider vinegar, which had been theretofore manufactured for sale by said defendants and which contained artificial coloring matter, was a product in imitation or semblance of cider vinegar and which was not made exclusively from pure apple juice,” and for marking or branding “ as and for cider vinegar said certain barrel containing such adulterated and imitation vinegar by branding the same with the words ‘blew York-State Pure Cider Vinegar,’pH in violation of,sections 50, 51 and 52 of the Agricultural Law.”
Defendants urge that the referee erred in allowing an amendment of the complaint, which permission was given on an application made at the final submission of the case. Defendants insist that the application should have been denied for laches. The right to make application for amendment of the pleadings was expressly reserved by stipulation. If the referee had the power to grant the amend-[867] meat, the application, was made in time. The referee, of course, had the same power a court has to permit an amendment of a pleading upon the trial of the action. (Code Civ. Proc. § 1018.) This includes the power to amend a pleading by conforming it to the facts proved where the amendment does not substantially, change the claim or defense. (Code Civ. Proc. § 723.).
The original complaint charged defendants with manufacturing for sale and keeping and offering for sale adulterated vinegar, and with falsely branding such vinegar as “ Pure Cidér Vinegar.” As a part of such vinegar the complaint referred specifically to the fifteen barrels from which the fifteen samples in question were taken and referred to each sample by its appropriate number. The complaint as amended separately stated and numbered as separate causes of action a violation of the statute in regard to each of these fifteen barrels, with two counts for each. No fact is stated in the amended complaint, and no cause of action therein alleged, which do not appear in the original complaint. Probably it was unnecessary to amend the original pleading, as a recovery on a complaint identical in the form with this, mutatis mutanMs, was sustained by this court and later by the Court of Appeals. (People v. Niagara Fridt Co., 75 App. Div. 11; affd., 173 N. Y. 629.) In any event the effect of the amendment was simply to separately number and state in appropriate counts the several causes of action alleged in gross in the original complaint, and an excision therefrom of much extraneous and unnecessary matter. The amendment was proper, and within the power of the referee to allow, as he did.
Much of appellants’ argument is expended in an effort to show that plaintiff failed to prove that the vinegar in these fifteen barrels was adulterated within the meaning of the statute. The finding of the referee is that the vinegar in each barrel “ contained artificial coloring matter, was a product in imitation or semblance óf cider vinegar and which was not made exclusively from pure apple juice.” Appellants urge that there is no proof, or not sufficient proof, that the vinegar contained artificial coloring matter, and that, if there is any evidence that it contained other substances than pure apple juice, these are accounted for by a possible addition of water containing, perhaps, no more than the normal amount of sodium, etc., ordinarily found in water recognized, or usually [868] considered, as pure. They further say that the addition of water to an extent which does not reduce the percentage of acetic acid below the statutory requirement is not a .violation of-the statute. (People v. Heinz Co., 90 App. Div. 408.) Much of the evidence, as to the results of' the different tests -made, indicates only the addition of water.' But ‘even if we are bound .to accept the doctrine-that the addition of water without explanation of the propriety, or necessity, of such addition, is not an adulteration'within the statute, there is, I think,'sufficient evidence that each barrel of vinegar in question did contain artificial coloring matter of some kind, and that the vinegar, for that reason alone, was adulterated, and not cider vinegar within the definition of the statute. Two recognized tests for artificial coloring matter appear to be the fuller’s earth test, and the acetate of lead test. Each of these was applied by the witness Hill to samples examined by him and he testifies that they disclosed the presence of added coloring matter. The other chemist, Miller, who examined eight-other samples,, says the vinegár Was artificially colored. It is true he made, the fuller’s earth test on only one of the samples examined by him, and that disclosed such -coloring.. But his examination of the other samples by the acetate of lead test showed results, which clearly indicated, as sho-wii by Hill’s and Mosher’s testimony, conditions that would be accounted for by the presence of added coloring matter. In view of the’evidence of the People’s chemists that such coloring matter had been added, and of the somewhat evasive and unsatisfactory evidence of defendant’s chemist, that he found none he identified, the evidence of defendant' Doyle, limited as it was to a statement that; no injurious Or deleterious' matter had been added, taken in Connection with the failure to call defendant’s employees to. testify as to the'composition of the vinegar, and expressly that" no. coloring' matter had been added, I think the finding of the referee as to that fact was correct.
Defendant also claims that at most only two penalties of $100 each could properly have, been imposed, because there were but two lots of barrels inspected, which were on sale, had been sold, or . offered for sale. I recognize the universal distaste of the courts to an award of cumulative penalties. But if the statute clearly shows an . intention that; a penalty can be recovered for each offense, I [869] understand the courts will still enforce them.(Suydam v. Smith, 52 N. Y. 383, 388.) It is true that the opinion of the court in Griffin v. Interurban St. R. Co. (179 N. Y. 438, 449) contains an expression which might almost be interpreted to mean that a recovery of successive penalties could only be permitted, under the present interpretation of statutes prescribing penalties, when the law in so many words declared that the recovery by the same plaintiff of successive, or cumulative, penalties is allowed. I do not think, however, it has yet been held that where the statute by other apt words shows the intention to create a liability for each infraction of the statute, the recovery of cumulative penalties is precluded. It will be observed that the recovery here is for false branding, or marking, each of fifteen barrels of vinegar. Such false marking of a package is declared a violation of the statute. And a penalty of $100 is prescribed “ for each violation.” (§ .53.) It would' seem from 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. Interurbana St. R. Co, 180 N. Y. 538.)
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 the1 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 1 cidér 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.
[870] The-recovery of judgment against tlie individual defendants, who occupied, as to the defendant.corporation, relations practically the same as the individual defendants did in the Niagara Fruit Oo. •case is warranted under the holding in that case.
The judgment should be affirmed, with costs.
All' concurred, except McLennan, P. J., -who dissented, in an opinion.