10 § 35 a

marked except as herein provided or used in any such test by such manufacturers, unless so examined and marked. The acid used in making such test by such manufacturers shall be examined from time to time by competent chemists employed by the commissioner of agriculture and if found not to be of sufficient strength the use of such acid shall be prohibited. No person or persons receiving or purchasing milk or cream upon the basis of the amount of fat contained therein, shall credit any patron or patrons delivering milk or cream thereto with a greater or lesser percentage or average percentage of fat than is actually contained in the milk or cream so delivered. The commissioner of agriculture or persons employed by him for that purpose may at any time assist in making tests of milk received at a butter or cheese factory for the purpose of determining the efficiency of tests usually made at such factory. All persons using other than standard bottles or acid which is not of the required strength to accurately determine the amount of fats in milk or crediting any patron or patrons delivering milk or cream with a greater or lesser percentage or average percentage of fat than is actually contained in the milk or cream so delivered, shall be subject to the penalties prescribed by section fifty-two of this article, and shall be guilty of a misdemeanor.

§ 34. Penalty for delivery of adulterated milk. Any person, firm, association or corporation delivering any milk to any butter or cheese factory in violation of any of the provisions of this chapter shall forfeit and pay to the patrons, firm, association or corporation owning the milk delivered to such factory the sum of fifty dollars, to be recovered in a civil action by the person, firm, association or corporation entitled thereto.

§ 35. Inspection; how conducted. When the commis11 608 sioner of agriculture, an assistant commissioner, or any person or officer authorized by the commissioner, or by this chapter, to examine or inspect any product manufactured or offered for sale shall in discharge of his duties take samples of such product, he shall before taking a sample, request the person delivering the milk or who has charge of it at the time of in spection, to thoroughly stir or mix the said milk before the sample is taken. If the person so in charge refuses to stir or mi milk as requested, then the person so requesting shall himself so stir and mix the milk before taking the sample, and the defendant shall thereafter be precluded from introducing evidence to show that the milk so taken was not a fair sample of the milk delivered, sold, offered or exposed for sale by him. The person taking the sample of milk for analysis shall take duplicate samples thereof in the presence of at least one witness, and he

he

shall in the presence of such witness seal both of such samples, and shall tender, and, if accepted, deliver at the time of taking one sample to the manufacturer or vendor of such product, or to the person having custody of the same, with a statement in writing of the cause of the taking of the sample. In taking samples of milk for analysis at a creamery, factory, platform or other place where the same is delivered by the producer for manufacture, sale or shipment, or from a milk vendor who produces the milk which he sells, with a view of prosecuting the producer of such milk for delivering, selling or offering for sale adulterated milk, the said commissioner of agriculture or assistant or his agent or agents shall within ten days thereafter, with the consent of the said producer, take a sample in a like manner of the mixed milk of the herd of cows from which the milk first sampled was drawn and shall deliver the duplicate sample to the said producer and shall cause the sample taken by himself or his agent to be analyzed. If the sample of milk last taken by the commissioner of agriculture or his agent or agents shall upon analysis prove to contain no higher percentage of milk solids, or no higher percentage of fat than the sample taken at the creamery, factory, platform or other place, then no action shall lie against the said producer for violation of subdivisions one, two, three, seven and eight of section thirty of this chapter. In taking a second sample as above set forth from the mixed milk of the herd, it shall be the duty of the commissioner of agriculture to have an assistant, agent or agents present during the entire time in which the said cattle are being milked to observe closely so as to be sure that the milk thus to be sampled is not adulterated and to see that it is thoroughly mixed so that the sample taken shall be a fair sample of the average quality of the mixed milk of the entire dairy or herd of cows of said producer. If, however, the said producer refuses to allow such examination of the milk produced by his dairy, then he shall be precluded from offering any evidence whatever tending to show that the milk delivered by him at the said creamery, factory, platform or other place was just as it came from the cow. If the said producer does permit such examination, the commissioner of agriculture shall, upon receiving application therefor, send to said producer a copy of the analysis of each of the samples of milk so taken and analyzed as above provided.

§ 36. Branded cans, jars or bottles not to be sold, re-marked or used without consent of owner. No person shall hereafter without the consent of the owner or shipper, use, sell, dispose of, buy or traffic in any milk can, jar or bottle, or cream can, jar or bottle, belonging to any dealer or shipper of milk or cream residing in

12 § 37 a '11 e 608

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, dealer or shipper, stamped, marked or fastened on such can, jar or bottle, or wilfully mar, erase or change by re-marking or otherwise said name or initials of any such owner, dealer or shipper, so stamped, marked or fastened upon said can, jar or bottle. Nor shall any person without the consent of the owner use such can, jar or bottle, for any other purpose than for milk or cream; nor shall any person without the consent of the owner place in any such can, jar or bottle, any substance or product other than milk or cream.

§ 37. Regulations in regard to condensed milk. No condensed milk shall be made or offered or exposed for sale or exchange unless manufactured from pure, clean, healthy, fresh, unadulterated and wholesome milk from which the cream has not been removed either wholly or in part, or unless the proportion of milk solids shall be in quantity the equivalent of twelve per centum of milk solids in crude milk, and of which solids twenty-five per centum shall be fats. No person shall manufacture, sell or offer for sale or exchange in hermetically sealed cans, any condensed milk unless put up in packages upon which shall be distinctly labeled or stamped the name of the persons or corporation by whom made and the brand by which or under which it is made. When condensed milk shall be sold from cans or packages not hermetically sealed, the vendor shall brand or label such cans or packages with the name of the manufacturer of the milk contained therein.

§ 38. 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 unadulterated milk or cream from the same, the article known as oleomargarine or any article or product in imitation or semblance of natural Lutter produced from pure, unadulterated milk or cream of the sume; 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 any human food in imitation or in semblance of natural butter, nor sell, keep for sale or offer for sale any article, substance or compound, made, manufactured or produced in violation of the provisions of this section, whether such article, substance or compound shall be made or produced in this state or elsewhere. Any person manufacturing, selling, offering or exposing for sale any commodity or substance

in imitation or semblance of butter, the product of the dairy, shall be deemed guilty of a violation of this chapter, whether he sells such commodity or substance as butter, oleomargarine or under any other name or designation whatsoever and irrespective of any representations he may make relative to such commodity or substance. Any dealer in any article or product, the manufacture or sale of which is prohibited by this section, who shall keep, store or display such article or product, with other merchandise or stock in his place of business, shall be deemed to have the same in his possession for sale.

§ 39. Manufacture or mixing of animal fats with milk, cream or butter prohibited. No person shall manufacture, mix or compound with or add to natural milk, cream or butter any animal fats or animal or vegetable oils, nor make or manufacture any oleaginous substance not produced from milk or cream, with intent to sell the same as butter or cheese made from unadulterated milk or cream or have the same in his possession with such intent; nor shall any person solicit or take orders for the same or offer the same for sale, nor shall any such article or substance or compound so made or produced, be sold as and for butter or cheese, the product of the dairy. No person shall coat, powder or color with annatto or any coloring matter whatever, butterine or oleomargarine or any compound of the same or any product or manufacture made in whole or in part from animal fats or animal or vegetable oils not produced from unadulterated milk or cream by means of which such product, manufacture or compound shall resemble butter or cheese, the product of the dairy; nor shall he have the same in his possession with intent to sell the same nor shall he sell or offer to sell the same. No person by himself, his agents or employees, shall manufacture, sell, offer or expose for sale, butter that is produced by taking original packing stock or other butter or both and melting the same, so that the butter fat can be drawn off, then mixing the said butter fat with skimmed milk or milk or cream or other milk product and rechurning the said mixture, or that is produced by any similar process and is commonly known as boiled or process butter, unless he shall plainly brand or mark the package or tub or wrapper in which the same is put up in a conspicuous place with the words "renovated butter" or " process butter." If the same shall be put up, sold, offered or exposed for sale in prints or rolls, then the said prints or rolls shall be labeled plainly with printed letters in a conspicuous place on the wrapper with the words "renovated butter" or "process butter." If the same is packed in tubs or boxes or pails or other kind of a case

or package the words "renovated butter" or process butter" shall be printed on the top and side of the same in letters, at least, one inch in length, so as to be plainly seen by the purchaser. If such butter is exposed for sale, uncovered, not in a package or case, a placard containing the label so printed shall be attached to the mass of butter in such manner as to easily be seen and read by the purchaser. Every person selling, offering or exposing for sale at retail, "renovated butter" or "process butter," shall cause each parcel or package of such butter delivered to or for a customer to be wrapped in a light colored paper on which shall be printed in black letters, not less than three-eighths inch square and in Gothic type, the words "renovated butter" or process butter." No person shall sell, offer or expose for sale, any butter or other dairy products containing a preservative, but this shall not be construed to prohibit the use of salt in butter or cheese, or spirituous liquors in club or other fancy cheese or sugar in condensed milk. No person, firm, association or corporation shall induce or attempt to induce any person to violate any of the provisions of this chapter. Any person, firm, association or corporation selling, offering or advertising for sale any substance, preparation or matter for use in violation of the provisions of this chapter shall be guilty of a violation of this section.

use.

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§ 40. Prohibited articles not to be furnished for No keeper or proprietor of any bakery, hotel, boardinghouse, restaurant, saloon, lunch-counter or place of public entertainment, nor any person having charge thereof or employed thereat, nor any person furnishing board for any others than members of his own family, or for any employees where such board is furnished for a compensation or as part of the compensation of any such employee, shall keep, use or serve therein either as food for his guests, boarders, patrons, customers or employees or for cooking purposes any article or substance made in violation. of the provisions of this article. Any keeper or proprietor of any hotel, boarding-house, restaurant, saloon, lunch-counter or place of public entertainment who uses or serves therein for his guests any oleaginous substance as a substitute for butter, the manufacture or sale of which is not prohibited by the agricultural law, shall print plainly and conspicuously on the bill-of-fare, if there is one, the words, "Oleomargarine Used Here" and shall post up conspicuously in different parts of each room where such meals are served, signs in places where they can be easily seen and read, which shall bear the words, "Oleomargarine Used Here" in letters at least two inches in length and so printed as to be easily read by guests or boarders. (Thus amended by L. 1909, ch. 357, in effect May 15, 1909.)

Amendment of 1909 added last sentence, beginning with "Any keeper ".