Pound v. Molyneaux

24 N.Y.S. 592, 53 N.Y. St. Rep. 854, 71 Hun 612

• Court: New York Supreme Court
• Decided: July 28, 1893
• Status: Published

Opinion

BARNARD, P. J.

This action was brought under. chapter 401, . Laws 1887, as amended by chapter 25, Laws 1890. The plaintiff was the owner of a milk can. It was found in a milk spring "belonging to defendant in August, 1891. The owner had given no consent that the defendant should have on his premises the can in question. The question litigated on the trial was one of fact. The defendant testified that, although he owned the farm on which the can was found, he.had leased the premises, previous to the finding of the can, to a Mrs. Huysen. The agreement was this: The cows on the farm belonged to defendant and a Mrs. Longyear. Mrs. Huysen rented the spring lot, and agreed to milk the cows, cool the milk, and deliver the same at the platform by the road. Defendant was to furnish the cans. Defendant did furnish the cans,'but this one was not among those furnished by him, and he never knew it was used on the farm. The cans were kept on defendant’s other premises. Assuming these facts to be true, the defendant,is not liable for the penalty for using the same. He had no knowledge that the plaintiff’s can was in use in the business. He had leased the property on which the can was found. Mrs. Huysen could use the spring for cans of milk other than defendant’s. The presumption is, under the finding of the jury, that the can was in Mrs. Huysen’s possession, and was not used in the business of the defendant. There is no proof that the can ever was used for the defendant’s milk. The judgment and order denying new trial should therefore be affirmed, with costs. All concur.