2. PARTITION ($ 114*)-PROCEEDINGS-COSTS.

In a partition suit, the referee's percentage for paying out money provided for by Code Civ. Proc. § 3297, is properly cast under section 3253, providing for additional allowances in such suits.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 440-449; Dec. Dig. § 114.*]

3. PARTITION (§ 114*)-PROCEEDINGS-COSTS.

Though plaintiff in a partition suit was allowed the full five per cent. costs provided for by Code Civ. Proc. § 3252, he is also entitled to his ordinary statutory allowance.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 440-449; Dec. Dig. § 114.*]

Appeal from Special Term, Dutchess County.

Action by Edwin M. Johnston against Henry P. Johnston and others. From a judgment for plaintiff, defendant Henry P. Johnston appeals. Affirmed.

Argued before BURR, THOMAS, RICH, STAPLETON, and PUTNAM, JJ.

John J. Donnelly, of Beacon, for appellant.

George Worrall, of Poughkeepsie, for respondent.

PER CURIAM. [1] In this partition suit the court gave leave to issue a supplemental summons, which brought in as defendants the administrators of the estate of Henry C. Johnston, deceased. The court also, on grounds that are not questioned, set aside the first sale, and directed a resale. The two lots of land in suit realized $6,400, which, less costs, was distributed among the parties according to their interests. As this sale was made within three years after the granting of letters of administration, it is urged that the moneys should have been paid into court. Code of Civil Procedure, § 1538. But this interlocutory judgment did not provide that the sale should "be free from the lien of every debt of such decedent." A final accounting of the estate had also been had before the surrogate. The court, therefore, could distribute the fund to those entitled, and was not called on to tie up the part of the proceeds representing the Estate of Henry C. Johnston.

[2-4] The referee's percentage for paying out moneys (section 3297) was rightly cast under Code of Civil Procedure, § 3253. The court gave allowances in all of 5 per cent. although plaintiff also taxed $60 statutory allowance. Code of Civil Procedure, § 3252. This was not error. By the words "total allowances" (Warren v. Warren, 203 N. Y. 250, 96 N. E. 417), which cannot exceed 5 per cent., Judge Werner meant those given by the court, and did not refer to the statutory allowance of $60 under section 3252 of the Code of Civil Procedure, which follows a recovery "as a matter of course" (O'Neill v. Gray, 39 Hun, 566). While these proceedings were not exceptional. or peculiarly difficult, the allowances aggregating 5 per cent. were clearly within the court's discretion.

The final judgment appealed from is affirmed, but without costs.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

SOULE v. LOOKSTEIN.

(Supreme Court, Appellate Term, First Department.

January 4, 1915.)

1. JUDGMENT (§ 159*)-DEFAULT-PROCEEDINGS TO SET ASIDE-ALLEGATION OF DEFENSE.

A statement, in affidavits in support of a motion to set aside a default entered against a judgment debtor in supplementary proceedings, that the debtor has a good, substantial, and meritorious defense, is a mere conclusion, and is insufficient to support a finding that there was a defense upon the merits.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 310, 312, 313; Dec. Dig. § 159.*]

2. EXECUTION (§ 418*)-SUPPLEMENTARY PROCEEDINGS-PUNISHMENT FOR CON

TEMPT.

Where a judgment debtor tendered, by his motion to set aside a default and attachment for contempt against him in supplementary proceedings, an issue upon the merits as well as upon the question of nonservice of the orders upon him, and an order overruling his motion was affirmed on appeal, he has had his day in court as to the merits of the contempt charge, and cannot have a stay of the order punishing him therefor pending an appeal from that order.

[Ed. Note.-For other cases, see Execution, Cent. Dig. § 1201; Dec. Dig. § 418.*]

3. APPEAL AND ERROR (§ 1232*)-LIABILITY ON BOND-PUNISHMENT FOR CONTEMPT ESTOPPEL.

Where a judgment debtor, on appeal from an order overruling his motion to set aside a default and attachment for contempt against him in supplementary proceedings, gave a bond conditioned that if the order was affirmed he would pay the fine, he was estopped after the affirmance of the order from claiming that the fine was illegal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 47534757; Dec. Dig. § 1232.*]

Supplementary proceedings by Ullman B. Soule against Max F. Lookstein. On motion by judgment creditor to vacate an order grantting a stay to the judgment debtor pending an appeal by him from an order punishing him for contempt. Motion granted, and stay vacated. Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ. M. Brown, of New York City, for appellant.

Charles S. Amsel, of Brooklyn, for respondent.

GUY, J. This is a motion made herein for an order modifying an order heretofore made granting a stay to the judgment debtor pending an appeal by him from an order of the City Court, dated November 30, 1914, adjudging him in contempt for failure to appear in supplementary proceedings under an order dated April 21, 1914. The facts upon which this stay was granted were not fully set forth upon the motion, but as presented upon this rehearing are substantially as follows:

The judgment debtor, after the issuance and return of an execution against his property, was required by an order made in supplementary proceedings to appear and be examined in regard thereto. He failed to appear, and an order to show cause why he should not be punished as for a contempt was issued, returnable on May 11, 1914. He also failed to appear upon the return of this order, and his default was

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

noted, and an order made that an attachment issue, returnable forthwith. The debtor's attorney thereupon applied for and obtained an order to show cause, with a stay returnable on the 15th day of May, 1914, why

"the default taken herein on the 11th day of May, 1914, should not be opened, and why the judgment debtor should not be allowed to come in and defend the motion on the merits, and why he should not be allowed to traverse the return herein."

[1] This order was based upon affidavits, and the only reference to the merits therein was the statement that the debtor "has a good and substantial and meritorious defense to this motion." This is a mere conclusion, and gives no facts upon which to base a finding that there was a defense upon the merits; in fact, the entire effort of the debtor upon the motion was directed to showing that he had never been served with the orders for his appearance. The opposing affidavits controverted this, and the court below found upon this issue of fact against the debtor and denied his motion. The debtor took an appeal from this order, and applied for an order staying proceedings on the part of the judgment creditor pending such appeal. This stay was granted upon condition that the debtor should give a surety company bond, conditioned that:

"If the order appealed from was affirmed, or the appeal dismissed, the debtor or the surety would pay the amount of the fine imposed by the court below and the costs."

The bond was furnished containing that condition. Upon appeal, the order of the City Court denying the debtor's motion to open his default was affirmed by this court. After such affirmance the debtor was brought into the City Court, and by an order of that court dated November 30, 1914, was fined the amount of the judgment and the costs. The judgment debtor has appealed from this last order, and it was upon such appeal that the stay, now sought to be modified, was granted.

[2] Upon the facts now appearing it is clear that the stay so granted should be vacated entirely. The judgment debtor has had his day in court. He did not move to vacate the attachment in the lower court, but to open his default, and to be allowed, among other things, to show a defense upon the merits as to why he should not be punished for contempt in failing to obey the mandate of the court. Any and all of the grounds which he now claims he wants reviewed by this court upon his present appeal from the order fining him could have been urged upon the hearing on the return of the order on May 15, 1914, as a reason why his default should be opened. Upon the return of that order, the debtor tendered an issue upon the merits, as well as upon the question of nonservice of the orders but failed to give any reason why, if proper service of the orders had been made, he should not be punished. To permit the debtor to again present reasons why he should not be punished for the disobedience of the previous orders requiring him to appear would in effect be permitting him to renew his motion to open his default, and upon appeal from an order denying such motion have the entire case heard de novo. A motion once made and denied cannot

be renewed without the consent of the judge who heard it, or upon the presentation of new facts which have occurred since the denial of the motion. Goldenberg v. Adler, 123 N. Y. Supp. 387.

[3] Another equally cogent reason for vacating the stay herein is this: The debtor gave a bond, as hereinbefore stated, to the effect that, if the order appealed from was affirmed, he would pay the fine imposed for his failure to appear. He took the benefit of that order, his appeal was heard, and the order affirmed. The consequent imposition of the fine was the legitimate sequence of the order appealed from, and he is now estopped from claiming that the fine thus imposed was without authority of law.

Motion granted, and stay vacated. All concur.

(88 Misc. Rep. 519)

PEOPLE v. MARTIN.

(Supreme Court, Appellate Term, First Department. January 7, 1915.) FOOD (5*)-“ADULTERATED MILK”-“CHEESE"-"BUTTER"-STATUTES.

Agricultural Law (Consol. Laws, c. 1) § 30, declares that the terms "butter" and "cheese," when used in the article, mean the products of the dairy usually known by those terms, which are manufactured from pure, unadulterated milk, or cream, or both, etc. After defining oleomargarine, butterine, imitation butter, or imitation cheese, it declares that the term "adulterated milk," when used in the act, means: (1) Milk containing more than 88 per cent. of water or fluids. (2) Milk containing less than 12 per cent. of milk solids, etc. Section 52 declares that a person convicted of exposing adulterated milk for sale, as defined in subdivisions 1, 2, § 30, of the law, shall be liable to a penalty. Held, that section 30, subds. 1, 2, defining adulterated milk, should not be construed as limited to milk used in the manufacture of butter, cheese, and other articles previously enumerated in the section, but that such subdivisions should be construed as defining a standard for milk to be sold or exposed for sale.

[Ed. Note. For other cases, see Food, Cent. Dig. § 1; Dec. Dig. § 5.* For other definitions, see Words and Phrases, First Series, Cheese; also. First and Second Series, Adulterate; Butter.]

Appeal from Municipal Court, Borough of Manhattan, First District. Action by the People against Georgiana Martin. Judgment for defendant, and the People appeal. Reversed, and new trial ordered. Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ. James A. Parsons, of Albany (Robert P. Beyer, Deputy Atty. Gen., of counsel), for the People.

John W. Suling (Frederic C. Leubuscher, of New York City, of counsel), for respondent.

GUY, J. Plaintiff sued the defendant to recover a penalty of $50 alleged to have been incurred under section 52 of the Agricultural Law for exposing for sale adulterated milk, as defined by subdivisions 1 and 2 of section 30 of said law. The respondent's counsel urges, and this seems to have been the view taken by the learned trial justice in

"For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the court below, that section 30, subdivisions 1 and 2, of the Agricultural Law, prescribe no standard for the selling or exposing for sale of adulterated milk, and that the use of such milk is only forbidden, and the standard prescribed, when such milk is used in the manufacture of butter, cheese, and the other articles enumerated in such section. This construction of the section referred to cannot be upheld. Section 30 of the Agricultural Law reads as follows:

"Sec. 30. Definitions.-The terms 'butter' and 'cheese,' when used in this article, mean the products of the dairy, usually known by those terms, which are manufactured exclusively from pure, unadulterated milk or cream or both, with or without salt or rennet, and with or without coloring matter or sage. The terms 'oleomargarine.' butterine,' 'imitation butter' or 'imitation cheese' shall be construed to mean any article or substance in the semblance of butter or cheese not the usual product of the dairy, and not made exclu sively of pure and unadulterated milk or cream, or any such article or substance into which any oil, lard or fat not produced from milk or cream enters as a component part, or into which melted butter or butter in any condition or state, or any oil thereof has been introduced to take the place of cream. The term 'adulterated milk,' when so used, means:

"1. Milk containing more than eighty-eight per centum of water or fluids. "2. Milk containing less than twelve per centum of milk solids.

"3. Milk containing less than three per centum of fats.

"4. Milk drawn from cows within fifteen days before and five days after parturition.

"5. Milk drawn from animals fed on distillery waste or any substance in a state of fermentation or putrefaction or on any unhealthy food.

"6. Milk drawn from cows kept in a crowded or unhealthy condition. "7. Milk from which any part of the cream has been removed.

"8. Milk which has been diluted with water or any other fluid, or to which has been added or into which has been introduced any foreign substance whatever.

"All adulterated milk shall be deemed unclean, unhealthy, impure and unwholesome. The terms 'pure milk' or 'unadulterated milk,' when used singly or together, mean sweet milk not adulterated, and the terms 'pure cream or 'unadulterated cream,' when used singly or together, mean cream taken from pure and unadulterated milk. The term 'adulterated cream' when used shall mean cream containing less than eighteen per centum of milk fat or cream to which any substance whatsoever has been added."

It is perfectly apparent from the reading of the section that the standard for pure milk is fixed by its requirements, and that milk that contains more than 88 per centum of water or fluids, or milk not conforming to the several specifications contained in section 30, is "adulterated" milk within the purview of the statute, without regard to its specific use, and that by the sale or exposing for sale of such milk the vendor is liable for the penalty of $50 prescribed by section 52 of the act. The construction sought to be placed upon this section by the defendant would permit the sale of milk regardless of its adulterations and without conforming to the requirements of the section.

The other points raised by the appellant are equally untenable. No evidence was offered by the defendant, and the complaint was dismissed. at the close of the plaintiff's case. It was shown that samples of milk were taken from a wagon from which one of the men in charge delivered milk to a house in Prince street, New York City. The analysis of the milk, made by a competent chemist and by the best-known method for determining the amount of solids or fats, show that the milk