THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. Section 37 of the Agricultural Law (the act referred to in the complaint) provides: "Every person violating any of the provisions of the Agricultural Law shall forfeit to the People of the State of New York the sum of not less than fifty dollars nor more than one hundred dollars for the first violation, and not less than one hundred dollars or more than two hundred dollars for the second and each subsequent violation. * When the violation consists of the * * sale or the offering or exposing for sale or exchange of any prohibited article or substance, the sale of each one of several packages shall constitute a separate violation. Held, that the complaint alleged but a single cause of action for a single violation of the statute, and that only one penalty could be recovered thereunder. SMITH, J., dissented. Semble (per CHASE, J.), that it should not be held that a complaint unites two or more causes of action without separately stating and numbering the same when it is necessary to go into an elaborate argument for the purpose of showing that it is possible to prove more than one cause of action under the complaint as stated. APPEAL by the defendant, Edward R. Buell, from so much of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 26th day of April, 1902, as denies the defendant's motion for an order requiring the plaintiff to separately state and number the causes of action alleged in the complaint. This action was commenced against the defendant to recover penalties for an alleged violation of the Agricultural Law. The 3d paragraph of the complaint is as follows: "Upon information and belief that the defendant on or about the 15th day of October, 1901, at Miller's Station, in the county of Delaware, N. Y., did expose for sale, offer for sale, and sell, a quantity of impure and adulterated milk, to wit, five cans of milk, in violation of sections 20, 22 and 23 of Chapter 338 of the Laws of 1894* and the amendments thereto." The complaint demands judgment against the defendant for $500. This motion was made by the defendant to require the plaintiff to file an amended complaint wherein should be separately stated and numbered the causes of action set forth in the complaint. The motion was denied. E. H. Hanford and E. A. Mackey, for the appellant. *Sic. See Laws of 1893, chap. 338, §§ 20, 22, 23, as amd.-[REP. App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. Section 20 of the Agricultural Law (Laws of 1893, chap. 338) defines certain words used in article 2 of said law. That part of sections 22 and 23 of said Agricultural Law (as respectively amd. by Laws of 1900, chap. 101, and Laws of 1901, chap. 429) material in the determination of the question here presented is as follows: No person shall sell or exchange, or offer or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk. 66 "$ 22. 66 * * * * * * * * * "§ 23. No person shall sell, supply, or bring to be manufactured, to any butter or cheese factory any milk diluted with water, or any unclean, impure, unhealthy, adulterated or unwholesome milk, or milk from which any of the cream has been taken, except pure skim milk to skim-cheese factories. * * * " It is provided by section 37 of said Agricultural Law (as amd. by Laws of 1901, chap. 656) as follows: "Every person violating any of the provisions of the Agricultural Law shall forfeit to the People of the state of New York the sum of not less than fifty dollars nor more than one hundred dollars for the first violation, and not less than one hundred dollars or more than two hundred dollars for the second and each subsequent violation. When the violation consists of the sale or the offering or exposing for sale or exchange of any prohibited article or substance, the sale of each one of several packages shall constitute a separate violation. * * * * * It should not be held that a complaint unites two or more causes of action without separately stating and numbering the same when it is necessary to go into an elaborate argument for the purpose of showing that it is possible to prove more than one cause of action under the complaint as stated. (Pope v. Kelly, 30 App. Div. 253; Hatch v. Matthews, 9 Misc. Rep. 307.) If the allegations of the complaint are indefinite and uncertain the defendant's remedy was by motion to require the same to be made definite and certain by amendment. (Code Civ. Proc. § 546.) A sale of several cans of impure and adulterated milk at one time and place and to one person as a single transaction should be alleged in the complaint as one cause of action. The fact that the statute provides that the sale of each one of several packages shall constitute a separate violation does not require a separate THIRD DEPARtment, June TERM, 1903. [Vol. 85. action or statement of cause of action for each particular can of milk sold. The evident intention of the statute in declaring that the sale of each one of several packages shall constitute a separate violation was to remove any question as to whether more than one penalty could be recovered for a single sale consisting of two or more packages. It is declaratory of the manner of computing the amount of the recovery. If it is necessary to allege the facts showing that the plaintiff is entitled to recover the penalty in separate causes of action for each package contained in a single sale it would in many instances make a complaint of very great length and make ridiculous the rules of pleading. Where several penalties are incurred by trespassing (People v. M'Fadden, 13 Wend. 396) or by failure to do some act required by statute, and such failure has continued for a sufficient length of time to incur many penalties (Longworthy v. Knapp, 4 Abb. Pr. 115), it is not necessary in a suit therefor to separate the statement thereof into innumerable causes of action. As said in People v. M'Fadden (supra), "To require a count for each penalty would defeat the great object of the Legislature of reducing the pleadings to the simplest form." And in substance in People v. Tweed (63 N. Y. 194) that the Code was designed to simplify pleadings, and that to require a separate statement of matters constituting an entire transaction would lead to great and tedious prolixity. The reason for the decision in Wray v. Pennsylvania R. R. Co. (19 N. Y. St. Repr. 53) was therein stated to be "It is very doubtful whether under the decisions in Fisher v. The N. Y. Central R. R. Co.,* 46 N. Y. 644; Foote v. Same,† 50 id. 693; and Barker v. Same,‡ 61 id. 655, the plaintiff would be entitled to recover more than one penalty for the alleged violations of the act, all committed prior to the commencement of this action. If so the defendant has a right to have the several alleged causes of action definitely set forth so that it may demur thereto or move for such other relief in respect to the same as the law entitles it to." No such reason exists in this case. The plaintiff claims that the violation consisted of a single sale and insists that the complaint *Fisher v. N. Y. C. & H. R. R. R. Co. Foote v. N. Y. C. & H. R. R. R. Co. Barker v. N. Y. C. & H. R. R. R. Co. App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. should be so construed. The complaint is loosely drawn, but from it we conclude that the plaintiff intended to allege but one exposure for sale, offering for sale, and sale of one quantity of milk consisting of five packages. Whether such sale, if established, would entitle the plaintiff to one or several penalties, will depend upon the proof. The order should be affirmed, with ten dollars costs and disbursements. PARKER, P. J., CHESTER and HOUGHTON, JJ., concurred on the ground that there is but a single cause of action alleged in the complaint for a single violation of the statute under which only one penalty can be recovered; SMITH, J., dissented. Order affirmed, with ten dollars costs and disbursements. THE PEOPLE OF THE STATE OF NEW YORK ex rel. ESSEX COUNTY, N. Y., Relator, v. NATHAN L. MILLER, Comptroller of the State of New York, Respondent. Statute of Limitations -it applies to a proceeding by a county to compel the Comptroller to pay to the county the extra taxes which it has been compelled to pay because of land held therein by certain railroads having been exempted from taxation. In 1857 and thereafter the Legislature passed various statutes exempting certain railroad corporations owning lands in Essex county from taxation thereon. These exemptions continued until September 12, 1883. The railroad was not constructed in Essex county and that county received no benefits from the privileges and exemptions granted to the railroad corporations. In 1862 the Legislature passed a statute (Chap. 225) requiring the Comptroller to repay to the county of Essex the extra taxes which it had been compelled to pay by reason of the exemptions granted to the railroad corporations. In 1868 a similar statute (Chap. 355) was passed. The act of 1868 was amended from time to time so as to include the entire period covered by the exemptions. The county of Essex presented a claim under chapter 225 of the Laws of 1862, which was allowed on July 30, 1862, but until 1901 it made no further attempt to enforce its rights under the statutes in question. In 1901, by chapter 315 of the Laws of that year, the act of 1868 was further amended by adding thereto the following section: "§ 3. The account herein provided for shall be stated by the Comptroller, on or before January first, nineteen hundred and two, and shall include such taxes as APP. DIY.-VOL. LXXXV. 10 THIRD Department, June TERM, 1903. [Vol. 85. may have been lost by the failure of the treasurer of these respective counties to return the same during the period of exemption mentioned in the aforesaid acts, provided, however, that such statement shall be made to such counties as shall, on or before August first, nineteen hundred and one, file with the Comptroller a statement of all taxes claimed to be lost as herein mentioned, and a failure to do so on the part of any such county shall exclude it from the provisions of this act." July 31, 1901, the county of Essex filed a claim for reimbursement for the loss occasioned by the exemption of the railroad lands. Held, that a tribunal in which the county's claim for reimbursement could be determined and enforced had existed for the period limited by the Statute of Limitations for the commencement of an action or proceeding to enforce an equitable claim between the citizen and the State, and that, as the claim had not been presented until after the expiration of such period, the Comptroller was prohibited from allowing the claim by section 6 of article 7 of the Constitution, which provides: "Neither the Legislature, canal board, nor any person or persons acting in behalf of the State, shall audit, allow or pay any claim which, as between citizens of the State, would be barred by lapse of time." CERTIORARI issued out of the Supreme Court and attested on the 26th day of April, 1902, directed to Nathan L. Miller, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings, decisions and actions in refusing to allow the claim of Essex county filed with him July 31, 1901. The relator is a municipal corporation and one of the political divisions of the State of New York. The Sacketts Harbor and Saratoga Railroad Company was organized pursuant to a special act of the Legislature (Laws of 1848, chap. 207). Said railroad company obtained the rights, powers and privileges stated in an act entitled, "An act to authorise the formation of railroad corporations" (Laws of 1848, chap. 140), and the special rights, powers and privileges stated in said special act, and the modifications and extensions thereof contained in subsequent acts. (Laws of 1851, chap. 72; Laws of 1853, chap. 244 ; Laws of 1855, chap. 122; Laws of 1857, chaps. 98 and 280; Laws of 1860, chap. 37; Laws of 1861, chap. 45; Laws of 1862, chap. 90.) Among the special powers and privileges granted to said company was the pre-emption right of selecting and purchasing any quantity of land not exceeding 250,000 acres from lands belonging to the State in the counties of Herkimer and Hamilton. Said company |