ant's bottles at defendant's plant," and in effect merely denies that it provided the milk for immediate consumption. The complaint then alleges:

That on the said 26th day of January "plaintiff caused to be purchased a quart bottle of such milk, so left at said Emens store, for immediate consumption by herself and family, and upon information and belief that said bottle and milk were in the same condition when purchased for plaintiff as when delivered to said Emens by defendant; that plaintiff opened said bottle, and consumed some of the cream and milk therein, practically immediately after its purchase."

This allegation is denied on information and belief, and is clearly the material issue so far presented in the case. Then follows the allegation on information and belief that said milk was not pure, wholesome, or clarified, but, on the contrary, contained poisonous and deleterious substances solely through the negligence and carelessness of the defendant in purchasing bottles therefor, washing and cleansing the same, guarding and protecting its milk and containers from poisonous substances, and in failing to have pure milk bottled in pure, clean bottles, and so handled and protected that no poisonous substances could get therein.

Obviously the actionable negligence is not in the purchasing of bottles. The defendant owed the plaintiff and the public no duty in this regard. The actionable negligence, which is denied by the defendant consists, if at all, in placing upon the market poisonous milk, and the question as to how the milk became poisoned is no part of the plaintiff's case. The defendant, in selling its milk, bottled under its seal, and delivered to merchants for distribution and sale, assumed the obligation to the public of providing wholesome milk; and if the plaintiff can establish the fact that it purchased a quart of milk, such as the defendant admits having delivered to Mr. Emens, and that such milk contained an active and dangerous poison, and that in using such milk she was made sick, sore, etc., she has established a prima facie case against the defendant, and the particular place in which the defendant purchased its bottles, or the manner of washing or cleansing the same, is not at all material to the plaintiff's case, however important these facts may be by way of defense.

The principle involved was early decided in the case of Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, where a manufacturing druggist placed belladonna in a jar labeled as dandelion, and this belladonna, after several intermediate sales to jobbers, was finally sold to the plaintiff, for whom a physician had prescribed extract of dandelion, resulting in a severe poisoning. In that case the court said:

"In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury, therefore, was not likely to fall on him, or on his vendee, who was also a dealer, but much more likely to be visited on a remote purchaser, as actually happened. The defendant's negligence put human life in imminent danger. Can it be said that there was no duty on the part of the defendant to avoid the creation of that danger by the exercise of greater caution, or that the exercise of that caution was a duty only to his immediate vendee, whose life was not endangered? The defendant's duty arose out of the nature of his business and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labeled into the market; and the defendant is justly responsible for the

probable consequences of the act. The duty of exercising caution in this respect did not arise out of the defendant's contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison, mislabeled, into the hands of Aspinwall as an article of merchandise, to be sold and afterward used as the extract of dandelion, by some person then unknown. The defendant's contract of sale to Aspinwall does not excuse the wrong done to the plaintiffs. It was a part of the means by which the wrong was ef fected. The plaintiffs' injury and their remedy would have stood on the same principle, if the defendant had given the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale on the faith of the label. * The defendant, by affixing the label to the jar, represented its contents to be dandelion, and to have been 'prepared' by his agent, Gilbert. The word 'prepared,' on the label, must be understood to mean that the article was manufactured by him, or that it had passed through some process under his hands, which would give him personal knowledge of its true name and quality. The label conveyed the idea distinctly to Foord that the contents of the jar was the extract of dandelion, and that the defendant knew it to be such.".

*

The principle of the above case has been consistently followed, both in this state and by the Supreme Court of the United States. Kuelling v. Roderick Lean Mfg. Co., 88 App. Div. 309, 84 N. Y. Supp. 622; Statler v. Hay Mfg. Co., 125 App. Div. 69, 109 N. Y. Supp. 172; Id., 195 N. Y. 478, 481, 88 N. E. 1063, and authorities there cited; MacPherson v. Buick Motor Co., 153 App. Div. 474, 138 N. Y. Supp. 224; Willey v. Mynderse, 165 App. Div. 620, 151 N. Y. Supp. 280; Waters-Pierce Oil Co. v. Deselma, 212 U. S. 159, 29 Sup. Ct. 270, 53 L. Ed. 453. And it thus clearly appears that the gravamen of the action set out in the complaint is the representation of the defendant that the milk contained in the bottles was merchantable, pasteurized milk, while in fact it contained a deadly poison. The duty rested upon the defendant to see to it that the milk was of the quality represented— at least, that it did not contain substances which made it inimical to human life-and in failing to perform this duty it became liable to the plaintiff, as the ultimate purchaser of this milk, for any damage she might sustain from its use, provided, of course, that the defendant was unable to establish its own freedom from negligence in the premises.

No amount of examination of the defendant's secretary and treasurer about the source from whence the bottles came, or the manner of performing the work of pasteurizing the milk, or of the cleaning of the bottles, can add anything to the plaintiff's cause of action; no revelations from the books or papers called for can add anything to the plaintiff's cause of action, if she is able to prove the unadmitted facts alleged in her complaint. The defendant, under her pleadings, has placed a deadly poison on the market under its own special seal in the guise of pasteurized milk, and it is for the defendant, if these facts are established, to explain how this poison came to be there, and its own lack of responsibility therefor. Why, then, does the plaintiff seek this order? Why should she be permitted to harass and annoy the defendant over a matter which is not material or necessary to her cause of action? It seems to me that there is no ground for permitting the plaintiff the privilege asked, and that the motion should be denied. An order denying the motion may be entered, with $10 costs.

PRING V. THORP. (No. 7118.)

(Supreme Court, Appellate Division, First Department. April 1, 1915.)

1. LIBEL AND SLANDER 99-BILL OF PARTICULARS-HEARERS OF SLANDER. In an action for slander, plaintiff may be required by bill of particulars to state the name of one person who was present each time the slander was uttered.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 233; Dec. Dig. 99.]

2. LIBEL AND SLANDER 99-BILL OF PARTICULARS-TIMES AND PLACES OF UTTERANCE OF SLANDER.

In an action for slander, the defendant by bill of particulars may compel the plaintiff to disclose each and all of the times and places where the plaintiff claims and expects to prove that the slanderous words were uttered.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 233; Dec. Dig. 99.]

3. DISCOVERY

37-BILL OF PARTICULARS-SLANDER-TIMES AND PLACESEXAMINATION OF DEFENDANT.

In an action for slander, on motion for a bill of particulars by defendant to require the plaintiff to specify the times and places when and where the slanderous words were uttered, if the plaintiff cannot state such details specifically, he may secure an order for the examination of the defendant, to enable him to obtain the information to furnish the bill of particulars.

[Ed. Note. For other cases, see Discovery, Cent. Dig. § 50; Dec. Dig. ~~~37.]

Appeal from Special Term, New York County.

1

Action by Frederick Pring against Richard C. Thorp. From an order directing plaintiff to serve a bill of particulars, he appeals. Modified and affirmed.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

Kellogg & Rose, of New York City, for appellant.

R. W. Candler, of New York City, for respondent.

PER CURIAM. The action is for damages for slander alleged to have been uttered by defendant "during the months of August, September, and October, 1912, * * * in the presence and hearing of divers persons." The order appealed from requires plaintiff to furnish particulars: (a) Of each and all of the times and places during the months named when plaintiff claims and expects to prove that the slanderous words were uttered; and (b) the names of the persons in whose presence and hearing the plaintiff claims and expects to prove such utterances.

[1] As to the second item, it will be sufficient if plaintiff is required to state the name of one person who was present on each occasion (Rowe v. Washburne, 62 App. Div. 131, 70 N. Y. Supp. 868), and the order will be modified accordingly.

[2,3] As to the times and places of utterance, the defendant is clearly entitled to be advised in advance of the trial, and is therefore

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

entitled to the particular sought. If, as may be the case, the plaintiff is not now able to state the times and places with particularity, he will be entitled to examine the defendant, and to prove by him at what times and places he used the words complained of. Ball v. Evening Post Pub. Co., 48 Hun, 149-151. It will be necessary upon the trial for plaintiff to prove, as part of his case, the times and places of utterance, and he may consequently examine defendant for the purpose of proving the facts by him.

The order will be modified as above suggested, and, as modified, affirmed, without costs to either party.

UNITED STATES TITLE GUARANTY CO. v. BROWN.

(Supreme Court, Appellate Division, Second Department.

March 19, 1915.)

1. ATTORNEY AND CLIENT 117-EMPLOYMENT OF ATTORNEY BY CORPORATION PRACTICING LAW-STATUTE.

Pen. Code, § 280, provides that no corporation shall practice law. Plaintiff corporation contracted with third persons to prosecute legal proceedings on their behalf, and retained defendant, an attorney, to conduct the litigations, paying him money for incidental expenses, and he collected other. money as a result of the litigations. Plaintiff sued for a termination of the contract and for an accounting. Held, that the question whether the corporation, which had violated the statute regarding the practice of law, could recover against the attorney, was one to be decided on grounds of public policy, in which case any benefit to either party was merely incidental to the determination as to what judgment would best serve the public.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 232, 234, 235; Dec. Dig. 117.]

2. ATTORNEY AND CLIENT 117-EMPLOYMENT OF ATTORNEY BY CORPORATION PRACTICING LAW-STATUTE.

Pen. Code, § 280, provides that no corporation shall practice law. Plaintiff corporation, in violation thereof, contracted with third persons to undertake legal proceedings on their behalf, and employed defendant, an attorney, to conduct the litigations, paying him money for incidental expenses, and he collected other money as a result of the litigations. Plaintiff sued for a termination of the contract and for an accounting. Held, that the plaintiff might recover; the transactions between them having been merely mala prohibita, not mala in se.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 232, 234, 235; Dec. Dig. 117.]

3. ATTORNEY AND CLIENT 117-EMPLOYMENT OF ATTORNEY BY CORPORATION PRACTICING LAW-STATUTE.

Held, further, that plaintiff might recover, since the denial of relief to it would further no specific provision of the statute, which prescribes an exclusive punishment.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 232, 234, 235; Dec. Dig.

4. ATTORNEY AND CLIENT

117.]

117-EMPLOYMENT OF ATTORNEY BY CORPORATION

PRACTICING LAW-STATUTE.

Held, also, that defendant could not set up violation of the penal statute in bar of the suit against him, since he had received the money sought For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

in his professional capacity as a member of a profession, by compelling the integrity of which public policy will best be served.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 232, 234, 235; Dec. Dig. 117.]

5. ATTORNEY AND CLIENT 117-EMPLOYMENT OF ATTORNEY BY CORPORATION PRACTICING LAW-STATUTE.

Held, further, that defendant could not set up plaintiff's violation of the statute in bar of the suit against him; he being particeps criminis, and justice and equity requiring the restoration of the money.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 232, 234, 235; Dec. Dig. 117.]

6. ATTORNEY AND CLIENT 117-EMPLOYMENT OF ATTORNEY BY CORPORATION PRACTICING LAW-STATUTE.

Held, also, that the case was within the principle that one who has received money as the agent of a plaintiff cannot plead his principal's defective title, when sued for an accounting.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 232, 234, 235; Dec. Dig. 117.]

7. ATTORNEY AND CLIENT 117-EMPLOYMENT OF ATTORNEY BY CORPORATION PRACTICING LAW-STATUTE.

Held, that the defendant could not set up the statute in bar of a recovery against him, since such recovery does not enforce the prohibited contracts between the plaintiff corporation and third persons.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 232, 234, 235; Dec. Dig. 117.]

8. CONSTITUTIONAL LAW 67-POWER-PUBLIC POLICY.

A court cannot decide a case in accordance with its individual views of public policy upon ethical principles, without support in Constitution, statute, or judicial decisions.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 123; Dec. Dig. 67.]..

Appeal from Special Term, Kings County.

Action by the United States Title Guaranty Company against Arthur A. Brown. Judgment for plaintiff (86 Misc. Rep. 287, 149 N. Y. Supp. 186), and defendant appeals. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.

Edwin D. Webb, of New York City, for appellant.

Benjamin Reass, of Brooklyn (Hugo Hirsh and Emanuel Newman, both of Brooklyn, on the brief), for respondent.

JENKS, P.J. The plaintiff corporation made contracts with third persons to undertake legal proceedings on their behalf, and retained the defendant as an attorney and counselor at law to conduct the litigations. The plaintiff advanced moneys to the defendant for incidental expenses of the litigations, and the defendant also collected moneys as the fruit of some of these legal proceedings. The plaintiff and the defendant fell out, and so the plaintiff sues to terminate the agreement between them and for an accounting. The Special Term gave judgment for the plaintiff, and the defendant appeals.

[1] The defendant's plea at trial, and contention here is that the said contracts of the plaintiff and the third persons were illegal, inasmuch as the plaintiff is a corporation (section 280 of the Penal Code), For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes