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Vacancies, art. X, $ 5; cities, art. XII, & 2; oath of office, art. XIII, § 1.

Art. X, $ 5. Vacancies in office, how filled. (C. & G. Gen. Laws, p. 117.)

Application.-- This section applies only to offices created or provided for by the Constitution and does not apply to an office created by the legislature, such as the commissioner of public works, elected by the electors of the city of Buffalo. People ex rel. Ward v. Scheu, 60 App. Div. 592, 69 N. Y. Supp. 597, affirmed, 167 N. Y. 292; nor is the right of the legislature to provide for the filling of vacancies restricted in any way by the provisions of section 3 of article 12 of the Constitution, which provides for the holding of municipal elections in odd numbered years. Id.

Art. XII, § 2. Classification of cities, etc. (C. & G. Gen. Laws, p. 121.)

What constitutes city bill.-- Chapter 167, L. 1895, authorizing an action in the Supreme Court against the mayor, etc., of the city of New York upon a claim which for many years prior to the passage of the act was barred by the statute of limitations, relates to the “ property, affairs or government” of the city of New York and is a special city law within the meaning of this section of the Constitution, and should have been submitted to the mayor for his approval. Chrystal v. City of New York, 63 App. Div. 93, 71 N. Y. Supp. 352.

Laws affecting county embraced within boundary of city.- Chapters 704, 705 and 706 of the laws of 1901, making salaried the offices of sheriff, register and county clerk of Kings county, are not special city laws. The subject matter of each such act relates to the compensation of the officers of a county whose organization as such was expressly preserved by the Greater New York charter as a political subdivision of the state. The protection and control of the county affairs is subject to action by the legislature, and their administration is a matter of state concern. Although the departments of the city of New York exercise certain powers in connection with these county offices and pay the expenses incidental thereto, and also provide for raising money by taxation upon the property within the county for the payment of such expenses, their action in these matters is not for the city and is not connected with, and does not affect the corporate city government as such. McGrath v. Grout, 171 N. Y. 7, affirming, 69 App. Div. 314, 74 N. Y. Supp. 782.

Art. XIII, § 1. Oath of office. (C. & G. Gen. Laws, p. 123.) Verified statement of election expenses.-- The provision of section 41x of the Penal Code, prescribing the forfeiture of an office of an elected candidate for a failure to file a sworn itemized statement of his expenses within ten days after the election, is an additional oath and is prohibited by the above section of the Constitution. Stryker v. Churchill, 39 Misc. 578, 80 N. Y. Supp. 588.

Free passes, art. XIII, $ 5. Art. XIII, $ 5. Free passes, franking privileges, etc. (C. & G. Gen. Laws, p. 124.)

Free pass on palace or sleeping car.- A public officer who accepts the privilege of riding in a palace or sleeping car accorded to him by a free pass, accepts a free pass and free transportation within the meaning of the above section of the Constitution prohibiting the use by a public officer of free transportation. People v. Wadhams, 176 N. Y. 9.

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(1) The Igricultural Law. (L. 1893, ch. 338.) § 10. When injunction may be obtained. (C. & G. Gen. Laws, p. 162.)

County judge cannot grant injunction.- A county judge has no power to grant an injunction under this section. Such an injunction is within the exception contained in section 606 of the Code of Civil Procedure, and therefore sections 241 and 77:9 of the code do not apply. People v. Windholz, 68 lpp. Dir. 352, 74 N. Y. Supp. 241.

12. Inspection, how conducted. (C. & G. Gen. Laws, P. 167.)

Proof of taking samples.- A civil action cannot be maintained against a producer as distinguished from a mere seller of milk to recover the penalty prescribed for selling adulterated milk, without proof of compliance with the above section as to the taking of samples. People v. Gilmor, 73 App. Div. 48:3, 77 N. Y. Supp. 273.

Agricultural Law (L. 1893, ch. 338), s 22. $ 22. Prohibition of the sale of adulterated milk; regulating the sale of certified milk.- No person shall sell or exchange, or offer or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk or any cream from the same, or any unclean, impúre, unhealthy, adulterated, colored, or unwholesome cream, or sell or exchange or offer or expose for sale or exchange any article of food made from such milk or cream or manufacture from any such milk or cream any article of food. No person shall sell or exchange, or offer or expose for sale or exchange, as and for certified milk, any milk which has not been duly examined by a competent person to make such examination and which has not been found upon such examination to be free from antiseptics, added preservatives, and pathogenic bacteria, or bacteria in excessive numbers. All milk sold as certified milk shall be conspicuously marked with the name of the association certifying it. (Amended by L. 1900, ch. 101, L. 1904, chs. 480 and 566, in effect May 3, 1904.)

L. 1904, ch. 566, supersedes the earlier amendment of 1904 relating to the sale of imitation cream, the terms of which are not included in the later amendment.

Evidence as to ownership.- Evidence that defendant was a dealer in milk and cream; that the number of the milk wagon from which the cream was taken corresponded with the number of the license issued to the defendant; that the cream was taken from the wagon by milk inspectors at about 6:45 A. M. while the wagon was being driven along the streets by a person admitted to be in the employ of the defendant, is sufficient to warrant the finding that the defendant was the owner of the wagon and cream. People v. Hills, 64 App. Div. 584, 72 N. Y. Supp. 3.10.

Sufficiency of Evidence.- A violation of the above section is not shown by testimony of state inspectors that when they stopped the driver of the truck carrying the milk, he stated to them that he was then on his way to deliver it to certain places in the city of New York, where there is no proof that it was ever delivered there or anywhere. People v. McDermott-Bunger Dairy (o., 38 Misc. 365, 77 X. Y. Supp. 888.

Evidence of intent; sufficiency of test. - Where samples of milk are properly taken and delivered to the state chemist for analysis, and found to be adulterated, in the absence of proof as to the manner in which the samples were taken, it was improper to submit to the jury any question as to the fairness of the samples. In the absence of testimony impugning the fairness of the samples or the correctness of the analysis, evidence that the defendant had not tampered with the milk was incompetent, as the question of intent to adulterate was immaterial. People v. Laesser, 79 App. Div. 384, 79 N. Y. Supp. 470.

Agricultural Law (L. 1893, ch. 338), SS 24, 26.

Local regulation as to possession of adulterated milk.- Section 63 of the Sanitary Code of the city of New York, providing that no adulterated milk “ shall be brought into, held, kept or offered for sale at any place in the city of New York, nor shall anyone keep, have, or offer for sale in the said city any such milk,” is a proper exercise of authority conferred upon the board of health. Under such section mere possession of adulterated milk is not punishable. The above section of the Agricultural Law is not exclusive in its control of the subject of adulterated milk. People v. Timmerman, 79 App. Div. 565, 80 N. Y. Supp. 285.

§ 24. Cans or jars to be branded.- No person or persons shall hereafter without the consent of the owner or owners, shipper or shippers, use, sell, dispose of, buy or traffic in any milk can or cans, jar or jars, bottle or bottles, cream can or cans, jar or jars, bottle or bottles belonging to any dealer or dealers, shipper or shippers of milk or cream residing in the state of New York or elsewhere, who may ship milk or cream to any city, town or place within this state, having the name or initials of the owner or owners, dealer or dealers, shipper or shippers, stamped, marked or fastened on such can or cans, jar or jars, bottle or bottles, or wilfully mar, erase or change by remarking or otherwise said name or initials of any such owner or owners, dealer or dealers, shipper or shippers, so stamped, marked or fastened upon said can or cans, jar or jars, bottle or bottles. Nor shall any person or persons without the consent of the owner use such can or cans, jar or jars, bottle or bottles, for any other purpose than for milk or cream; nor shall any person or persons without the consent of the owner place in any such can or cans, jar or jars, bottle or bottles, any substance or substances, product or products other than milk or cream. (Amended by L. 1901, ch. 375 and L. 1904, ch. 168, in effect March 28, 1904.)

$ 26. Manufacture and sale of imitation butter prohibited.No person by himself, his agents or employees, shall produce or manufacture out of or from any animal fats or animal or vegetable oils not produced from uadulterated milk or cream from the same, the article known as oleomargarine or any article or product in imitation or semblance of natural butter produced from pure, unadulterated milk or cream of the same; or mix, compound with or add to milk, cream or butter any acids or other deleterious substance or any animal fats or animal or vegetable oils not produced from milk or cream, so as to produce any article or substance or

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