L. 1915, ch. 72. Commercial fertilizers; statements. § 200, 220. sentative of the owner, appointed by the owner. If in any case the members of such board fail to agree, they shall choose a third member of such board, and the findings of a majority shall be final. Valuations in all cases shall be made on the basis of the utility value of the slaughtered animals as producing and breeding animals. The determination of such board as to the amount to be paid by the state to any owner for any such animal shall be final, and a certificate of appraisal shall be issued under the hands of a majority of such board to the owner. Such certificate shall be verified by the members of the board of appraisal signing the same. The amounts found to be due by an appraisal under this section shall be paid, upon the audit and warrant of the comptroller, to the owners entitled thereto, upon presentation of proper certificates of appraisal. Awards not paid within thirty days from the making thereof shall bear interest at the rate of six per centum per annum, unless moneys appropriated therefor were available within said thirty days. The other provisions of this article relating to appraisal and amount of compensation shall not apply to the destruction of animals under this section where the conditions exist as herein provided. (Added by L. 1915, ch. 586, in effect May 11, 1915, in place of former § 104, repealed by L. 1909, ch. 232.) § 200. Prohibition as to adulterated or misbranded food. Libel. Words charging that the eating of ice cream manufactured by plaintiff resulted in death are libelous per se. Larsen v. Brooklyn Daily Eagle (1914), 165 App. Div. 4, 150 N. Y. Supp. 464. § 220. Statements to be attached to packages.-No manufacturer, firm, association, corporation or person shall sell, offer or expose for sale in this state any commercial fertilizer or any material to be used as a fertilizer, the selling price of which exceeds five dollars per ton, unless such commercial fertilizer or material to be used as a fertilizer shall be accompanied by or shall have affixed to each and every package in a conspicuous place on the outside thereof, a plainly printed statement which shall certify as follows: 1. The number of pounds in the package. 2. The name, brand, or trade mark under which it is to be sold, and in the case of agricultural lime its particular form and in the case of nitrogen the source from which derived. 3. The name and principal address of the manufacturer or person responsible for the placing of the commodity upon the market. 4. The minimum per centum of each of the following constituents which may be contained therein: (a) Nitrogen. (b) Available phosphoric acid, except that in cases of undissolved bone, basic slag phosphate, wood ashes, untreated phosphate rock, garbage tankage and pulverized natural manures, the minimum per centum of total phosphoric acid may be substituted therefor. § 262. Apples; packing and sale. (c) Potash soluble in distilled water. L. 1915, ch. 217. (d) In the case of agricultural lime, the minimum per centum of calcium oxide. If any commercial fertilizer or material to be used as a fertilizer, the selling price of which exceeds five dollars per ton, be sold, offered or exposed for sale in bulk such printed statement shall accompany every lot and parcel so sold, offered or exposed for sale. That portion of the statement required by this section, relating to the quality of commercial fertilizer or material to be used as a fertilizer, shall be known and recognized as the guaranteed analysis. (Amended by L. 1910, ch. 435, and L. 1915, ch. 72, in effect Jan. 1, 1915.) § 262. Grades and classes of apples; packing and sale.-That the standard grades or classes for apples grown in this state when packed in closed packages shall be as follows: First: "New York standard fancy grade" shall consist of apples of one variety, which are well grown specimens, hand-picked, properly packed, of good color for the variety, normal shape, free from dirt, diseases, insect and fungus injury, bruises and other defects except such as are necessarily caused in the operation of packing; or apples of one variety which are not more than five per centum below the foregoing specifications on a combination of all defects or two per centum on any single defect. Second: "New York standard A grade" shall consist of apples of one variety which are well grown specimens, hand-picked, properly packed, normal shape, practically free from dirt, diseases, insect and fungus injury, bruises and other defects except such as are necessarily caused in the operation of packing; or apples of one variety which are not more than ten per centum below the foregoing specifications on a combination of all defects or five per centum on any single defect. No apples in this grade shall show less than thirty-three and one-third centum of good color for the variety. Third: "New York standard B grade" shall consist of apples of one variety which are well matured, hand-picked, properly packed, practically normal shape, practically free from dirt, diseases, insect and fungus. injury; or apples of one variety which are not more than fifteen per centum below the foregoing specifications on a combination of all defects. or five per centum on any single defect. Fourth: "Ungraded." Apples not conforming to the foregoing specifications of grade, or, if conforming, are not branded in accordance therewith, shall be classed as ungraded and so branded. The minimum size of the fruit in the package shall also be branded upon it as hereinafter specified and in addition to the other marks hereinafter required. The marks indicating grade as above prescribed may be accompanied by any other designation of grade or brand if that designation or brand is not inconsistent with or marked more conspicuously than the one of the L. 1915, ch. 217. Apples; packing and sale. § 262. said four marks which is used on the said package. Apples packed and branded in accordance with the United States law approved August third, nineteen hundred and twelve, shall be exempt from the provisions of this act. The minimum size of the fruit in all classes or grades, including the ungraded, shall be determined by taking the transverse diameter of the smallest fruit in the package at right angles to the stem and blossom end. Minimum sizes shall be stated in variations of one-quarter of an inch, like two inches, two and one-quarter inches, two and one-half inches, two and three-quarter inches, three inches, three and one-quarter inches, and so on, in accordance with the facts. Minimum sizes may be designated by figures instead of words. The word "minimum" may be designated by using the abbreviation “min." A tolerance or variation of five per centum on size shall be allowed in all classes, but such five per centum shall not be in addition to the variations or tolerances for defects provided in grades "Fancy," "A" and "B." (A) Every closed package containing apples grown in the state of New York which is sold, offered or exposed for sale, or packed for sale, or transported for sale by any person shall bear upon the outside of one end in plain letters and figures the name and address of the packer or the person by whose authority the apples were packed and the package marked, the true name of the variety, the grade or class of the apples therein contained and the minimum size of the fruit in the packages. If the true name of the variety shall not be known to the packer or the person by whose authority the package is packed or branded, then such variety shall be designated as "unknown." Every package of apples which is repacked shall bear the name and address of the repacker or the name of the person by whose authority it is repacked in place of that of the original packer. (B) The marks or brands as prescribed by this act shall be in block letters and figures of size of not less than thirty-six point Gothic. (C) It shall be unlawful for any person within the state to sell, offer or expose for sale, or pack for sale, or transport for sale apples which are adulterated or misbranded within the meaning of this act. (D) For the purposes of this act apples packed in a closed package shall be deemed to be misbranded. First. If the package shall fail to bear the statements required by this act. Second. If the package shall be falsely branded or shall bear any statement, design or device regarding such apples which is false or misleading, or if the package bears any statement, design, or device, indicating that the apples contained therein are a given New York "standard grade" and said apples when packed or repacked do not conform to the requirements of such grade. (E) For the purposes of this act apples packed in closed packages § 264. Fruit trees; damages from sale. L. 1915, ch. 217. shall be deemed to be adulterated if their quality or grade when packed or repacked does not conform to the marks upon the package. (F) Any person who misbrands or adulterates apples within the meaning of this act, or who violates any of the provisions of this act shall, upon conviction thereof, forfeit and pay to the people of the state of New York a sum of not less than twenty-five dollars nor more than fifty dollars for the first violation and not less than fifty dollars nor more than a hundred dollars for each subsequent violation. (G) No person shall be prosecuted under the provisions of this act when he can establish satisfactory evidence to the effect that he was not a party to the packing and grading of such articles and had no knowledge that the same were misbranded or illegally packed, or when he can establish a guaranty, signed by the person from whom he received such articles, to the effect that the same are not adulterated or misbranded within the meaning of this act. Said guaranty, or said satisfactory evidence, to afford protection, shall contain the true name and address of the party or parties from whom said articles were received, or who made the sale or shipment of such articles to such person. (H) Definitions. The word "person" as used herein shall be construed to include both the singular and plural, individuals, corporations, copartnerships, companies, societies and associations. The act, omission or failure of any officer, agent, servant or employee acting within the scope of his employment or office shall be deemed the act, omission or failure of the principal. The words "closed package" shall mean a box, barrel or other package, the contents of which cannot be seen or inspected when such package is closed. (I) No person shall on behalf of any other person pack any apples for sale or transportation contrary to the provisions of this act. (J) This act shall not apply to apples actually transported in barrels to storage within this state until the same are sold, offered or exposed for sale, packed for sale, or transported for sale. Regulations and requirements herein in relation to transportation shall not apply to common carriers. (Amended by L. 1911, ch. 511, and L. 1915, ch. 217, in effect July 1, 1915.) L. 1915, ch. 217, § 2. Chapter four hundred and eighteen of the laws of nineteen hundred and fourteen, entitled "An act to regulate the grading, packing, marking, shipping and sale of apples," is hereby repealed. § 264. Damages accruing from sale of trees.-Nothing contained in section two hundred and sixty-three or any other section of this chapter shall be construed to deprive a purchaser of any fruit-bearing tree of his remedy at law in a civil action to recover damages sustained by reason of such trees proving untrue to name as specified on the label. Such damages may be recovered in a civil action by the purchaser of such fruit-bearing trees or by his personal representative or assignee at any time prior to the third bearing year, provided the purchaser notifies the seller as soon as §§ 282, 284. In any he has reason to believe that such trees are not true to name. action to recover damages suffered by the purchaser by reason of any fruit tree or trees not being of the name or variety under which they were tagged and sold, the seller shall have the burden of proof in establishing that any contract or any provision of any such contract exempting the seller from liability or limiting his liability was agreed to by the purchaser. In every case of a sale of fruit-bearing trees in lots of twenty-five or more, the seller must at once furnish the purchaser a copy of such contract upon the face of which shall be plainly printed the following: "In any action to recover damages suffered by the purchaser by reason of any fruit tree or trees not being of the name or variety under which they were tagged and sold, the seller shall have the burden of proof in establishing that any contract or any provision of any such contract exempting the seller from liability or limiting his liability was agreed to by the purchaser." The seller must also accompany the shipment of such trees with an itemized list of the same, which lists shall also give the name of the county and state where the trees covered by it were grown, the age of the trees, and the name and address of the person for whom the trees were grown, if requested by letter or in writing on the contract by the purchaser at the time of purchase. Within five days after the receipt by the purchaser of the trees and the list thereof the purchaser shall compare and notify the seller of any discrepancy between the list and the labels on such trees. (Added by L. 1914, ch. 367; and amended by L. 1915, ch. 127, in effect Mch. 24, 1915.) § 282. Definitions as used in this article. * A commission merchant who receives a consignment of goods to turn over and deliver to another and does so deliver them to another for sale, the law does not require the taking out of a license for the receiving and turning over of such goods, but if such receiver also receives other farm produce on consignment which he sells on commission, then such receiving and selling requires him to take out a license as a commission merchant. Rept. of Atty. Genl. (1915), p. 82. The term "meats" does not include live cattle, sheep, and hogs. Rept. of Atty. Genl. (1915), p. 40. The purpose of this section was to relieve merchants and others engaged in selling produce for consumption from the necessity of obtaining a license and complying with the other requirements of the statute, and it must be assumed that the applicant for the license indicated its intention to conduct the business of receiving and selling farm produce for resale, and the burden of proving that the particular consignments in question were sold by it for consumption is upon defendant, the principal on the bond. Huson v. Brown (1915), 90 Misc. 175. § 284. Bond. Action upon bond; rights of surety; waiver of right to question constitutionality of statute.-An action upon a bond given pursuant to this section by an applicant for a license to do business as a commission merchant in farm produce may be brought by the commissioner of agriculture and the surety will be deemed to have assented thereto. The principal by giving the bond and receiving produce as a licensed commission merchant waived its right to question the constitutionality |