Pyrke v. Brudno

243 A.D. 493, 278 N.Y.S. 353, 1935 N.Y. App. Div. LEXIS 7103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1935
• Status: Published

Opinions

Hill, P. J.

Plaintiff appeals from judgments dismissing on the merits the complaints in these two cases. The actions were brought against the defendant Brudno and his sureties under section 252 of article 21 of the Farms and Markets Law (now Agriculture and Markets Law) to recover an unpaid balance for milk and cream sold Brudno. The actions are identical. The plaintiff in each action is the Commissioner of Agriculture and Markets of the (State. Brudno was the defendant who purchased milk from the producers, but payment was guaranteed by different surety companies. The bond furnished under the statute is security for the payment of the purchase price of milk bought by a dealer from the producer, and does not apply to transactions between dealers. The Dairymen’s League Co-operative Association, Inc., had not purchased this milk from the producers, but under the contract was acting as the sales agent for them. It contracted to sell milk to Brudno. The producers were the dairy farmers living in the vicinity where Brudno operated his plant. Each producer delivered his own milk. Payment was to be made to the sales agent and under the contract the funds were to be mingled with those belonging to all the members of the league, and certain deductions made before distribution. Irrespective of this mingling, the contract was one of agency and not of purchase and sale.

The facts distinguish these cases from People v. Shoemaker (228 App. Div. 314; affd., 254 N. Y. 567).

The judgments should be reversed on the law, with costs, and plaintiff should recover in each action.

McNamee, Crapser and Heffernan, JJ., concur; Bliss, J., dissents with an opinion.