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defendant's counterclaim, and that the refusal of the court to allow such discontinuance was reversible error.

Judgment reversed and a new trial granted, with costs to appellants to abide the event. All concur.

KRONENBERGER V. QUINN. (Supreme Court, Appellate Term. January 7, 1901.) 1. Real Estate AGENT-ACTION FOR COMMISSIONS.

Under Pen. Code. $ 6100, making it a misdemeanor to attempt to earn commissions for the sale of real estate without written authority, plaintiff, who had no written authority, cannot raise the question of waiver of the written authority, in an action to recover commissions therefor. Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Philip Kronenberger against Thomas J. Quinn. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.

Robert Kuehnert, for appellant.
Joseph P. Fallon, Jr., for respondent.

GILDERSLEEVE, J. The action is for broker's commissions on sale of real estate. It is undisputed that plaintiff had no written authority to offer the property for sale. The complaint was properly dismissed. Whiteley v. Terry, 83 App. Div. 197, 82 N. Y. Supp. 89. Appellant asserts that this formality was waived by the parties. Whether it be so or not, the plaintiff was guilty of a misdemeanor in attempting to earn commissions for the sale of real property without written authority, and he cannot recover a claim founded upon services rendered in violation of law. Pen. Code, $ 6400; Hall v. Coppell, 7 Wall. (U. S.) 542, 19 L. Ed. 244; Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539.

dgment is affirmed, with costs to the respondent. All concur.

190 App. Div. 585.)

CONKLING v. WEATHERWAX et al.

(Supreme Court, Appellate Division, Third Department. January 6, 1901.) 1. ACTION TO ESTABLISH LIEN OF LEGACY-BURDEN OF PROOF,

Whether an action to establish the lien of a legacy and to decree the sale of land for its satisfaction is an ordinary suit in equity or an action under Code Civ. Proc. § 1819, which provides that it can only be maintained after demand and refusal of payment, it is incumbent on plaintiff

to prove that the legacy is a subsisting lien, and remains unpaid. 2. SAXE-EVIDENCE OF PAYMENT OF LEGACY-COMPETENCY.

In an action to establish the lien of a legacy as against the devisee's mortgagee, declarations of the devisee are incompetent to prove nonpayment of the legacy.

and 120 New York State Reporter 3. SAME.

In an action to establish the lien of a legacy, mere proof of demand of payment of the legacy is no proof of actual nonpayment thereof.

Smith, J., dissenting.
Appeal from Special Term, Rensselaer County,

Action by Clarissa Weatherwax Conkling against John T. Weatherwax and others to establish the lien of legacies and to obtain a sale of land for their satisfaction. From a judgment in favor of plaintiff, and of defendant Emily A. Tompkins, entered on a decision of the court, defendant Hannah M. Hidley appeals. Reversed.

Argued before PARKER, C. J., and SMITH, KELLOGG, CHASE, and HOUGHTON, JJ.

Buchanan, Lawyer & Whalen, for appellant.
Henry D. Merchant, for respondent Conkling.
Abel Merchant, Jr., for respondent Tompkins.

HOUGHTON, J. The Court of Appeals in its decision of this case (173 N. Y. 43, 65 N. E. 855) has eliminated all questions arising therein except the one growing out of the second trial as to whether it was necessary for the plaintiff to prove that her legacy remained unpaid, and, if that burden was upon her, whether she proved that fact by competent evidence. By the will of Henry Weatherwax, deceased, the legacies to plaintiff and to her sister Emily A. Tompkins, respondent herein, were made a lien upon the farm devised to Charles Weatherwax, who is now deceased. During his lifetime he mortgaged the premises to appellant Hidley. The lien of this mortgage is subordinate to that of the legacies the payment of which is sought to be enforced. The action is in equity. to establish the lien of the legacies and to obtain a decree of sale of the land for their satisfaction.

We think it was incumbent on the plaintiff to prove as a part of her substantive cause of action that her legacy was a subsisting lien, and remained unpaid. If the action be deemed one under section 1819 of the Code of Civil Procedure, this is clearly so, for that section provides the action can be maintained only after demand and refusal of payment. If the action be considered an ordinary one in equity, the rule is the same. The plaintiff's position is not different in principle from that of a creditor seeking to charge heirs and devisees, to the extent of the property received by them, with the debts of their ancestor or testator. In such a case the plaintiff must aver and prove all the facts which make them liable under the statute, including lapse of time, nonpayment, and lack of assets, as well as receipt of property. Selover v. Coe, 63 N. Y. 438; Brater v. Hopper, 77 Hun, 244, 28 N. Y. Supp. 472. In ordinary actions at law for money, while breach must be alleged, payment is an affirmative defense, which must be pleaded and proved; but this rule does not relieve the plaintiff from proof of nonpayment where failure to pay is an essential element to the right of recovery. Lent v. New York & Mass. R. R. Co., 130 N. Y. 504, 29 N. E. 988. In an action against the guarantor of a mortgage it is incumbent on the plaintiff not only to aver, but to prove, that the mortgage guarantied has not been paid. Schlesinger v. Hexter, 2 Jones & S. 499. The distinction in the rule as to proof of nonpayment in equitable actions to enforce a lien and in ordinary actions for recovery of money is shown by the fact that in an action for the foreclosure of a inortgage given as collateral to a bond nonpayment upon the bond must be proved, while in an action on the bond alone this is unnecessary. Coulter v. Bower, 11 Daly, 203; Davis v. N. Y. Concert Co., 41 Hun, 492. In the present case the plaintiff seeks to enforce a collateral which the testator provided for the payment of her claim. The right to resort to the collateral depends upon whether there remains anything due her on her legacy. She is not suing the derisce because he became liable to pay her legacy by accepting the devise, nor is she seeking to enforce payment from his representative, for his representative, as such, is not a party to the action. Although the plaintiff now asserts that she was not obliged to prove nonpayment, yet on the trial she evidently recognized that this burden was upon her, for she sought to prove the fact by declarations of the devisee to the effect that the legacies had not been paid. While such declarations would have been competent against the devisee himself, and would be competent against his representatives were they made parties to the action, they were mere hearsay as against the devisee's mortgagee, this appellant, and were improperly received as against her. The declarations of an assignor of a mortgage, made while he was the owner, are inadmissible against his assignee to defeat his title or establish equities in favor of the mortgagor. Merkle v. Beidleman, 165 N. Y. 21, 58 N. E. 757. Such declarations must be equally inadmissible to establish the existence of a lien prior to that of his mortgagee, or to enlarge its amount. If the plaintiff has a lien existing and prior to that of the mortgage of the appellant, she must establish it by common-law evidence aside from such declarations. The nonpayment of the legacy being a fact incumbent upon the plaintiff to prove, evidence upon that subject was material, and appellant's objection to such declarations as against herself was well taken. Mere proof of demand of payment was no proof of actual nonpayment. There being no other evidence of nonpayment in the case other than these inadmissible declarations, it follows that the judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event. The judgment being reversed, the order appealed from becomes inoperative, and the appeal therein should be dismissed, without

costs.

Judgment reversed, and ner trial granted, with costs to appellant to abide erent. All concur, except SMITH, J., dissenting, and CHESTER, J., not poting.

(90 App. Div. 408.)

PEOPLE v. HEINZ et al.

(Supreme Court, Appellate Division, Fourth Department. January 12, 1904.) 1. Foods-CIDER VINEGAR—"PURE"-STATUTE-CONSTRUCTION.

Under Agricultural Law (Laws 1893, p. 667, c. 338) 50, defining the term "cider vinegar" as used in that law as vinegar made exclusively from "pure" apple juice, the word "pure" means “free from mixture or contact with that wbich is deleterious, impairs, vitiates, or pollutes."

and 120 New York State Reporter 2. SAME.

Under Agricultural Law (Laws 1893, p. 667, c. 338) $$ 50-52, to present injury to health by penalizing the manufacture of vinegar which is not made from pure apple juice, the object of the statute is not defeated by the treatment of the apple juice, in the course of manufacture, by the introduction of pure water, to reduce the acid to vinegar. Appeal from Trial Term, Erie County.

Action by the people of the state of New York against Henry J. Heinz and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS,
HISCOCK, and STOVER, JJ.

John Cunneen, Atty. Gen., and W. F. Mackey, for the People.
Rogers, Locke & Milburn, for respondents.

STOVER, J. This action is brought to recover penalties for violations of sections 50, 51, and 52 of the agricultural law (Laws 1893, p. 667, c. 338), which are as follows:

"Sec. 50. Definition of Adulterated Vinegar.--All vinegar which contains any proportion of lead, copper, sulphuric acid, or other ingredients injurious to health, or any artificial coloring matter, or which has not an acidity equivalent to the presence of at least four and one-half per centum, by weight, of absolute acetic acid, or cider vinegar which has less than that amount of acidity, or less than two per centum of cider vinegar solids on full evaporation over boiling water, shall be deemed adulterated. The term cider vinegar when used in this article, means vinegar made exclusively from pure apple juice. Provided, however, that cider vinegar made by a farmer in this state exclusively from apples grown on his land, or their equivalent in cider taken in exchange therefor, shall not be deemed adulterated, if it contain two per centum solids and sufficient alcohol to develop the required amount of acetic acid.

"Sec. 51. Manufacture and Sale of Adulterated or Imitation Vinegar Prohibited.--No person shall manufacture for sale, keep for sale or offer for sale: (1) Any adulterated vinegar. (2) Any vinegar or product in imitation or semblance of cider vinegar, which is not cider vinegar. (3) As or for cider vinegar, any vinegar or product which is not cider vinegar.

"Sec. 52. Packages Containing Cider Vinegar to be Branded.-Every manufacturer or producer of cider vinegar shall plainly brand on the head of each cask, barrel, keg or other package containing such vinegar, his name and place of business and the words 'Cider Vinegar.' And no person shall mark or brand as or for cider vinegar any package containing that which is not cider vine sar.

The complaint, by several allegations, charges that the defendants engaged in selling, keeping for sale, and offering for sale "a substance made in imitation and semblance of cider vinegar, manufactured exclusively from pure apple juice, and which was and is not pure cider vinegar, but a compound manufactured in imitation and semblance thereof,” falsely branding it as cider vinegar, and that it is not pure cider vinegar, and with having falsely printed upon or affixed labels to the barrels and casks containing said adultered compound calculated to deceive the purchasers of the spurious vinegar. Plaintiff also alleged the manufacture by defendants of an adulterated compound made in imitation or semblance of cider vinegar, but which was not cider vinegar made exclusively from pure apple juice.

Samples were taken from barrels by inspectors from the Agricultural Department, and no question is made as to the fairness of

the samples. Analyses of the samples were made, both by chemists for the state and chemists for the defendants, and it is conceded that the samples were identical. According to the analysis of the defendants, the samples contained the requisite per centum of cider vinegar solids, and the evidence shows that the acetic acid may vary in cider vinegar from 3 to 6 or 7 per cent., and that the solids remaining in the vinegar have no special virtue or value, but are there simply because they have not been eliminated in the process of extracting the juice or in the process of manufacture.

The testimony of the defendants' manager as to the making of the vinegar showed that the apples were squeezed, the juice put in tanks, where it was allowed to remain for some time, then put in clearing tanks or vats, and from there into generators. In those generators alcohol, as the result of the fermentation, was turned into acetic acid. The acetic acid was then put in tanks, and allowed to remain for a long time, and then reduced to the acidity which the law permits, and barreled for use. This reduction of the acidity is accomplished by the use of pure water, no other ingredient being added. It also appears that when taken from the tanks for the purpose of reducing to vinegar the amount of acetic acid that is developed is very high; that it is neither palatable nor marketable vinegar, but is still acid, as distinguished from vinegar, and is not desirable or marketable for general use, and such uses as vinegar is generally put to.

We may perhaps dispose of the contention as to the defendants' adulteration of the vinegar as shown by analyses by confirming the holding of the trial judge that the product of the defendants was unadulterated, and contained no proportion of lead, copper, sulphuric acid, or other ingredients injurious to health, or any artificial coloring matter, and had an acidity equivalent to at least 472 per centum by weight of absolute acetic acid, or not less than 2 per centum of cider vinegar solids on full evaporation over boiling water, and that it complied in every particular with the standards and requirements of the statute in that case made and provided.

So far as conforming to the standard required by the statute, the evidence fully justified the finding of the trial judge, and no reason is shown for interfering with the conclusion reached. But the further claim is made by the plaintiff that, inasmuch as water was used in the treatment of the acetic acid, a violation of the statute prohibiting the sale, as or for cider vinegar, any product or vinegar which is not cider vinegar, has been shown, and the allegations of the complaint are established thereby. We do not think this a sound conclusion. Having in view the evident intention of the statute to prevent adulteration and the introduction of deleterious matter into vinegar products, such construction should be given to the statute as would accomplish this purpose, while not trenching upon the rights of the manufacturer or dealer in vinegar products. We think the construction attempted to be given to the word "pure," as used in the statute, is not the construction intended by the legislators. The word "pure” means, not only free from all foreign substance, but in its original sense "pure" means "free from any defiling or objectionable mixture.” We have in chemistry "pure” products, but in

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