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Regulations of Grade and Business.

SS 25-26

ments by which such oils and fluids shall be tested, and shall adopt such measures to enforce the provisions of this section and such rules and regulations for collecting, examining and testing samples of such oils and fluids as to them may seem necessary. The public analysts employed by or under the direction of such board shall test the samples of such oils and fluids as may be submitted to them under the rules of the board, for which they shall receive such reasonable compensation as the board may allow.

Naphtha and other illuminating products of petroleum which will not stand the flash test required by this section, may be used for illuminating or heating purposes only in the following cases :

1. In street lamps and open air receptacles apart from any building, factory or inhabited house in which the vapor is burned.

2. In dwellings, factories or other places of business when vaporized in secure tanks or metallic generators made for that purpose, in which the vapor so generated is used for lighting or heating.

3. For use in the manufacture of illuminating gas in gas manufactories situated apart from dwellings and other buildings.

Any person violating any provision of this section shall forfeit to the city or village, or if not in a city or village to the town in which the violation occurs, the sum of one hundred dollars for every such violation, and for every day or part of a day that such violation occurs.

This section shall not apply to the city of New York, and shall not supersede but shall be in addition to the ordinances or regulations of any city or village made pursuant to law for the inspection or control of combustible materials therein.

$ 25. Inspectors of storage. --The inspectors of buildings or other

proper authorities in every such city shall make an examination of all the premises where any of the articles or substances specified in the preceding sections of this article are kept or stored, and report any violation thereof to the authorities of the city whose duty it is to enforce the provisions thereof.

$ 26. Fire and light within one hundred and fifty feet of warehouses in the counties of New York, Kings and Queens prohibited.-No person shall bring, have, keep or use or suffer or permit to be brought, kept, had or used on board of any ship,

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vessel, canal boat, barge, lighter, boat or other craft lying at or within the distance of one hundred and fifty feet of any warehouse, yard, shed, dock, pier, bulkhead, wharf or other place within the counties of New York, Kings or Queens at, in or upon which petroleum oil or any of its products is stored or is kept for export or in quantities exceeding ten thousand gallons, or at, in or upon any such warehouse, shed, yard, dock, pier, bulkhead or other place, any lighted match or lighted cigar, cigarette or pipe, or any fire or light of any kind, except in strict conformity to the written permission of the owner, lessee or superintendent of such warehouse, yard, shed, dock, pier, bulkhead, wharf or other place, specifying the fire or light to be kept, had or used, the particular purpose for and the place or spot at which the same may be so kept, had or used and the particular manner of keeping, having and using the same.

This section shall not apply to steam tugs while transacting their ordinary business nor to steam fire engines engaged in extinguishing fires.

$ 27. Penalties and the enforcement thereof.—Every person violating the provisions of this article, relating to the test for refined petroleum and oil, shall forfeit to the people of the state the sum of five hundred dollars for each violation.

Every person violating any provision of this article, relating to the storage or keeping for sale of any article, substance or product herein specified, shall forfeit to the people of the state, the sum of two hundred and fifty dollars for each day and part of a day that such violation continues.

Every person violating any provisions of this article, relating to the encumbering of any sidewalk or street shall forfeit the sum of twenty-five dollars for each day and part of a day that such violation continues, to be paid, if in a city or village, to such city or village, and elsewhere, to the town in which such violation occurs.

The mayor and common council of every city or other proper authorities thereof, shall, by ordinance or resolution, provide for the proper enforcement of the provisions of the preceding sections of this article, and in every such city, the moneys collected by the city as penalties for the violation of any such ordinance or resolution or of any of such provisions, shall be applied to the support of the poor therein, except in Brooklyn, where there shall be paid into the widows and orphans' fund of the fire department, and except in Buffalo, where they shall be

Regulations of Grade and Business.

SS 28-29

paid to the treasurer of the firemen's benevolent association of the city for its use and benefit.

$ 28. Trade marks.-Any person engaged in manufacturing, bottling, or selling any beverage, medicine, perfumery or mixture in this state, put up by him for sale in any vessel or receptacle, with his name or other private mark branded, stamped or marked thereupon, may file in the office of the secretary of state and in the office of the secretary of state and in the office of the county clerk of the county where the same is manufactured, bottled, or put up for selling, a description of the name or other private mark so branded, stamped or marked thereupon, and publish the same once a week for at least three weeks successively in a newspaper published in said county, except in New York, and Kings, where such publication shall be for the same length of time daily in two newspapers therein, and he shall thereupon be deemed the proprietor of such name or mark, and of every vessel or receptacle upon which it may be branded, stamped or placed. No person, other than such proprietor, shall fill for any purpose, any such vessel or receptacle so branded, stamped or marked or from which any such brand, stamp, mark, name or other device has been removed, defaced or obliterated, nor remove, deface or obliterate the same or place other brands, stamps, marks, names or devices upon any such vessel or receptacle without the written permission of such proprietor, or unless there has been a sale to such person of such vessel or receptacle exclusive of the contents thereof by such proprietor.

No person other than such proprietor shall, without his permission use, traffic in, purchase, sell, dispose of, convert, multilate, destroy or willfully or unreasonably refuse to return or deliver to such proprietor on demand, any such vessel or receptacle so branded, stamped or marked belonging to such proprietor.

Any person violating any provision of this section shall forfeit to such proprietor one hundred dollars for each such violation.

Possession of any such vessel or receptacle without the consent of the proprietor of the trade-mark thereupon, shall be presumptive evidence of such violation.

§ 29. Unlawful detention of milk cans.- No person shall, without the consent of the owner or shipper, or his agent, use, sell, dispose of, buy or traffic in any can, irrespective of its condition, or the use to which it may have been applied, belonging to any dealer in or shipper of milk or cream in this state, or which may be shipped to any town, village or city in the state, which can has

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the name or initials of such owner, dealer or shipper stamped, marked or fastened thereupon, or willfully mar, erase, or change by remarking or otherwise, such name or initials.

If any person, without the consent of such owner, dealer or shipper, or his agent, uses, sells, disposes of, buys, traffics in or has in his possession or under his control any such can, it shall be presumptive evidence that such use, sale, disposal, purchase, traffic or possession is unlawful.

Any such owner, dealer or shipper or his agent may take possession of any can used in violation of this section whenever found, and if filled or partly filled with milk or cream, and the person in whose possession it is found does not, when requested, immediately empty the same, such owner, dealer or shipper, or his agent, may empty the same into the street or elsewhere, and shall not be liable for damages for any act done pursuant to the provisions of this section.

A person violating any provision of this section shall forfeit to such owner or dealer or shipper or his agent the sum of fifty dollars for every such violation, and an action may be brought therefor in the name of any such agent without joining the real party in interest that he represents, and in any such action brought for any such violation different persons may be joined as plaintiffs, whether jointly or severally interested therein, and different persons may be joined as defendants therein, who have severally violated any such provision, and a recovery may be had in favor of one or more of such plaintiffs against one or more of such defendants.

Such action may be brought in a court of record having juris diction thereof, and the place of trial thereof may be laid in the

county where such owner, dealer or shipper resides at the time un constitution as of the commencement thereof, and if laid in such county it shall Wannes v. Palmer not be changed for any cause or it may be brought in a justice's b6 a... 1299

court or other court not of record having similar jurisdiction in the city or county where a violation of this section is committed ; the district courts of the city of New York, shall have juris diction of such an action irrespective of the residence of any party or the location of the subject matter.

If at the time of the issue of the summons in a court not of record, the plaintiff or his agent make affidavit that he has reason to believe and does believe that any defendant has any such can or cans secreted upon his premises, the justice or other magistrate

Regulations of Grade and Business.

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or court issuing the summons must, without requiring an undertaking, grant an order for the arrest of the defendant, which order shall also contain a direction to the officer to whom the same is issued, immediately search the place or premises mentioned in said affidavit, and if any such can or cans are there found, to bring the same, together with the defendant or other persons in whose possession said can or cans are found, before such justice, magistrate or court. The proceedings may be amended at any time by adding parties or otherwise as justice may require; and the judgment may provide for the disposition of the can or cans found.

If upon the issue of any such process, the constable or other officer shall be unable to find the person or persons therein named, but shall find any can or cans as therein set forth, he shall bring such can or cans before such justice or magistrate, who shall thereupon proceed to determine the right of such com. plainant thereto, and if upon such hearing had thereon he shall be satisfied that such can or cans rightfully belong to such complainant, or that he is entitled to the possession thereof, he shall forthwith deliver the same into his possession or the possession of his agent.

The several superintendents of the railroad companies and the branches and connections thereof and steamboat lines operating their roads or lines, or any portion thereof in this state, shall have power to collect, gather and take into possession from any person or whenever found thereupon, any cans belonging to any such owner, dealer or shipper, and return the same to such owner, dealer or shipper, and may appoint an agent for that purpose, and such superintendent and such agent appointed by him shall have the same power and authority under this section as an agent of such owner, dealer or shipper.

The certificate of such superintendent appointing such agent, duly acknowledged, shall be presumptive evidence of the appointment and authority of such agent.

Any person authorized by this section to seize and take into his possession any such cans may, in case of resistance, call to his aid any police officer or constable of the town, village or city, who shall, when so called on, assist him in seizing or taking possession of such cans. (As amended by chap. 543 of 1900.)

8 30. Canned and preserved food.- No packer of or dealer in hermetically sealed, canned or preserved fruits, vegetables or

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