Dairymen's League Co-Operative Ass'n v. Ferguson , 247 A.D. 856 ( 1936 )

Judgment and order reversed on the law and the facts, with costs, and judgment granted in favor of the plaintiff and against the defendant for fifty dollars, with costs. Memorandum: A demand is not a condition precedent to a right of recovery by plaintiff in this action. In the memorandum of this court (241 App. Div. 916), handed down after the first trial, we did not use the word “ demand ” with reference to an essential requisite of plaintiff’s proof but only as referring to the period within which consent must have been found by the jury under the record there presented. The statute (General Business Law, § 270) is plain. It prohibits the use of a milk can without the owner’s consent. This record is replete with testimony that as alleged in the complaint defendant had for a long time had possession of plaintiff’s milk cans and on June 10, 1933, was using them without the consent of plaintiff; and the finding to the contrary is against the weight of the evidence. Consent cannot reasonably be inferred from the testimony. Even if the jury’s answers to the submitted questions were correct, the direction of a verdict should have been in favor of plaintiff. All concur. (The judgment was for defendant upon special findings in an action to recover penalties. The order denied a motion for a new trial on the minutes.) Present — Taylor, Edgcomb, Thompson, Crosby and Lewis, JJ.