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Supreme Court, December, 1921.

[Vol. 117.

the defendant has no other personal property from which sequestration could be made." While there must be something to satisfy the court that the payment of the money cannot be enforced by sequestration (Haas v. Haas, 197 App. Div. 619, 622), that fact does not have to appear in any particular form. Uttal v. Uttal, 140 id. 255. I think the allegations in the papers in question are sufficient to meet the requirements of the statute.

Writ dismissed. Relator remanded.

PEOPLE ex rel. DANA WALLACE, District Attorney of Queens County, Relator, v. ADAM CHRISTMANN, a Justice of the Municipal Court of the City of New York, and Others, Respondents.

(Supreme Court, Queens County, December, 1921.)

Intoxicating liquors seizure without warrant in private dwelling - when writ of prohibition will not issue to restrain replevin - Code Crim. Pro. § 802-b.

Where, without a search warrant, liquors are seized in and taken from the private dwelling of the owner of the liquor, an action in replevin lies, and a motion to restrain the trial of the action pending the disposition of a proceeding in rem under section 802-b of the Code of Criminal Procedure against the liquor so seized, will be denied.

APPLICATION for writ of prohibition.

Joseph Lonardo, assistant district attorney, for motion.

William J. Spalckhaver, for respondent Hufner. CROPSEY, J. The district attorney seeks a writ of prohibition to restrain a Municipal Court justice from

Misc.]

Supreme Court, December, 1921.

trying an action in replevin to recover the possession of liquor seized without warrant from the private dwelling of the plaintiff in the replevin action. The legislation passed early this year (Laws of 1921, chaps. 155, 156) prescribes certain proceedings and remedies in the enforcement of prohibition. Among other things a proceeding in rem against seized liquor is provided under certain conditions, and where such proceedings lie I think it was the intention of the legislature to have the seized liquor kept in official custody until the determination thereof. Chapter 156, above mentioned, adds section 802-b to the Criminal Code. It provides for the seizure under a search warrant of liquor illegally possessed. It states that liquor thus seized "shall not be taken from the custody of the peace officer making the seizure by a writ of replevin or other process, while the proceeding or trial is pending." Later on the same section provides that "Whenever a peace officer shall find any person in the unlawful possession thereof [of intoxicating liquor] outside of his private dwelling, he may, without a warrant, seize any and all such intoxicating liquor The officer so seizing the liquor must make a return of his proceedings as provided, which return shall be deemed a complaint "and the provisions of this section relating to proceedings for seizure pursuant to a warrant shall apply to such liquor * *." From these provisions I think it plain that where liquors are seized without a warrant, provided the seizure was under the conditions permitted by the statute referred to, they shall be kept in the possession of the peace officer pending the disposition of the trial and proceeding the same as if they had been seized under a warrant. In the present case the liquors were taken from the private dwelling of the person who claimed the ownership of them and the

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Supreme Court, December, 1921.

[Vol. 117.

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lawful right to retain them. The criminal charge against that person has been dismissed. ceeding in rem against the liquor is still pending. The alleged owner of the liquor has sued in the Municipal Court in replevin to recover it. If the seizure of the liquor had been made as provided by the statute in question, although without a warrant, I should have no hesitancy in holding that the replevin action could not be maintained pending the disposition of the proceeding in rem. But the seizure was concededly without right. The liquor was found in and taken from the private dwelling of its owner without a warrant. This is not permitted by the statute. In fact possession of liquor in a person's private dwelling is excepted from the list of cases in which it may be seized without a warrant. And where there has been such an illegal seizure there is no basis for the proceeding in rem. For the purposes of this case the situation is the same as though the statutes above mentioned had not been passed. Hence it follows that the owner of the liquor may maintain his action in replevin to recover it.

Motion denied.

Misc.] Appellate Term, Second Department, December, 1921.

MORTIMER DANIEL LIEBERMAN, an Infant, by MAY LIEBERMAN, his Guardian ad Litem, Appellant, v. SHEFFIELD FARMS SLAWSON DECKER CO., INC., Respondent.

(Supreme Court, Appellate Term, Second Department, December, 1921.)

Warranty sale of bottled milk - implied warranty that milk is fit for human consumption — distributor held liable for illness of child caused by worms in milk.

Upon a sale of milk to be used as food there is an implied warranty of its fitness for human consumption even though the seller is merely a distributor of the product.

Race v. Krum, 222 N. Y. 410, followed.

The mother of plaintiff having bought of defendant a standard quart bottle of "Certified Milk" which was produced at the Wilmarth Farms, Kingsley, Penn., and sealed in conformity with the standards of the Kings County Medical Society, added boiled water to a portion of the milk for the use of plaintiff who was then eighteen months old and who toward evening on the same day became ill. An examination by the child's father showed small worms attached to the inside of the glass bottle and the remainder of the milk was kept and delivered by the guardians of the child to their family physician. In an action for negligence the complaint alleged inter alia that the illness of the child was due to the carelessness, recklessness and negligence of the defendant in the preparation of the milk and without contributory negligence on the part of the infant plaintiff or that of his guardian ad litem, and further, that the milk was unfit for human consumption and contained worms which caused the infant plaintiff to become ill. The family physician's diagnosis was gastrointeritis or inflamed condition of the stomach and intestines, and he testified that the inner surface of the bottle was saturated with little organisms or worms and that the nearest thing he could compare them with was "dragon fly larvae," and he also testified that the presence of these organisms in the milk was a competent producing cause of the child's illness.

The physician who was authorized by the Kings County Medical Society to pass upon the milk produced at the Wil

Appellate Term, Second Department, December, 1921. [Vol. 117.

marth Farms testified that, on one occasion, four years prior to the one in question, worms were present in the milk and indicated that these worms came from a reservoir used for the storage of water; that the worms had gotten into the reservoir from the surface, and that the water was used to wash the rims of the bottles and in that way the worms got into the bottle. It also appeared that the bottles and the caps which sealed them were furnished by the defendant, who was merely the distributor of the milk, but that the actual bottling and sealing thereof was done at the Wilmarth Farms, and that no employees of the defendant were employed there nor was any employee of defendant engaged in the bottling process. The trial justice after granting plaintiff's motion to amend the complaint to conform to the proof so as to claim to recover upon the theory of an implied warranty in the sale of the milk, and in the mistaken belief that such was the only cause of action, dismissed the complaint upon the merits. Upon reversing the judgment entered in favor of defendant and ordering a new trial, held, that the mere purchase of the milk made known to defendant that it was required for food; that as any one reading the printed matter on the label, "Sheffield Farms Co., Inc., Bottled at Wilmarth Farms," might well assume that the milk was the product of defendant's farm, the plaintiff had a right to assume that defendant had the opportunity to examine the milk.

APPEAL by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, in favor of defendant and dismissing plaintiff's complaint on the merits.

Emanuel Sustick, for appellant.

Arthur J. Peck, for respondent.

KELBY, J. On the 23d of August, 1919, the plaintiff's mother and present guardian ad litem bought from the defendant a quart bottle of "Certified Milk." This milk was for the use of the infant plaintiff, who was then eighteen months old. The certified milk was contained in a standard quart milk bottle and had

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