§§ 221, 222. Commercial fertilizers. L. 1919, ch. 79. Construction. The proviso contained in this section is not an added prohibition to the preceding subdivisions of the section defining misbranded articles, but it qualifies and limits the prohibitions preceding it in the same section. People v. Durkee (1919), 189 App. Div. 276, 178 N. Y. Supp. 614. Compound sold under name "Vanilla Flavor"; formula of compound printed in small type. A defendant who sold under the name "Vanilla Flavor" a compound or mixture of which only a small part was extract of vanilla may be convicted of a violation of sections 200 and 201 of the Agricultural Law, although the formula was printed on the label with the word "compound," if the type was so small as not to attract the notice of purchasers except upon a close inspection. It was error to rule as a matter of law that the defendant had not violated the statute. People v. Triechler (1917), 178 App. Div. 718, 165 N. Y. Supp. 453. "Durkee's Salad Dressing and Meat Sauce," a food compound made under a secret formula and containing vinegar, salt and other ingredients, none of which is harmful in any way, is not an adulterated article within the meaning of this section of the Agricultural Law. It is a food compound containing no harmful ingredients, when put up in packages labeled with the quotation given, and is an article sold under a distinctive name within the meaning of the proviso in this section of the Agricultural Law, and is not, therefore, misbranded within the meaning of the preceding subdivisions of that section. People v. Durkee (1919), 189 App. Div. 276, 178 N. Y. Supp. 614, affg. 101 Misc. 331, 166 N. Y. Supp. 987. Manufacture of malted milk from malted skimmed milk constitutes a violation of the statute. People v. Kuperschmid (1919), 107 Misc. 506, 176 N. Y. Supp. 828. § 221. Deficiency from guaranteed analysis, under certain conditions, not to be considered as violations.—It shall be a violation of the provisions of this article if the statement required by section two hundred and twenty of this article shall be false in regard to the net weight of the contents of the package sold, offered or exposed for sale, or in the name, brand or trade mark under which the fertilizer is sold, or in the name and address of the manufacturer or person responsible for placing the commodity upon the market. It shall also be a violation of the provisions of this article if any commercial fertilizer or material to be used as a fertilizer shall contain a smaller percentage of nitrogen, phosphoric acid, potash, calcium oxide or magnesium oxide than is certified in said statement to be contained therein, when such deficiency shall be greater than ten per centum of any one of such constituents and when such deficiency amounts to more than four-tenths of a pound of nitrogen, or one pound of phosphoric acid or potash, or three pounds of combined calcium and magnesium oxides, in one hundred pounds of fertilizer or material to be used as a fertilizer, it shall be a violation. (Amended by L. 1910, ch. 435, L. 1917, ch. 342, and L. 1919, ch. 79.) § 222. Statement filed with commissioner of agriculture; license fees.Before any manufacturer, firm, association, corporation or person shall sell, offer or expose for sale, in this state any commercial fertilizer or material to be used as a fertilizer, he or they shall, for each and every brand of commercial fertilizer or material to be used as a fertilizer, file an L. 1919, ch. 79. Commercial fertilizers. § 222. nually, prior to the sale, offer or exposure for sale with the commissioner of agriculture a certified copy of the statement with the exception of the net weight of the package specified in section two hundred and twenty of this article. Every manufacturer, firm, association, corporation or seller of any commercial fertilizer or material to be used as a fertilizer shall pay annually prior to the sale, offer or exposure for sale, to the treasurer of the state of New York a license fee of twenty dollars for each and every brand to be sold, offered or exposed for sale. Whenever a manufacturer, firm, association, corporation or seller of any commercial fertilizer or material to be used as a fertilizer, desires at any time to sell such commercial fertilizer or such material and has not complied with the requirements of the statute, he or they shall before selling, offering or exposing the same for sale, comply with the requirements as herein provided. Said treasurer shall in each case at once certify to the commissioner of agriculture the payment of such license fee. Each manufacturer, firm, association, corporation or seller who has complied with the provisions of this article shall be entitled to receive a certificate from the commissioner of agriculture setting forth said facts. Such certificate shall expire on the thirty-first day of December of the calendar year for which it was issued, but no such certificate shall be issued for the sale of a brand of commercial fertilizer or material to be used as a fertilizer under a brand or trade name, or with any information or statement accompanying same, which is misleading or deceptive or tends to mislead or deceive as to its quality or the constituents or materials of which it is composed. Any such certificate so issued may be canceled by the commissioner of agriculture when it is shown that any statement upon which it was issued is false or misleading. Whenever a manufacturer, firm, association, corporation or person shall have filed the statement and paid the license fee as prescribed in this section, no agent, seller or retailer of such brand shall be required to file such statement or pay such fee upon said brand during the year for which licensed, nor upon such goods so licensed remaining unsold in subsequent years which were purchased during the year for which it was licensed. For the purposes of this article, commercial fertilizers or materials to be used as a fertilizer, shall be considered as distinct and separate brands when differing either in guaranteed analysis, name, brand or trade mark or in any other method of marking. (Amended by L. 1910, ch. 435, L. 1917, ch. 342, and L. 1919, ch. 79.) Application of manufacturer of fertilizer for certificate; mandamus; moving papers not showing right to certificate; when alternative writ may be granted.-A manufacturer of a fertilizer known as "stonemeal" is not entitled to a writ of mandamus requiring the commissioner of agriculture to issue a certificate under this section of the Agricultural Law, where the moving papers are absolutely silent upon the question as to whether or not the material will enrich the soil, and the opposing affidavits tend strongly to show that it is not an efficient factor in the production of crops. However, if the record had disclosed a question of fact as §§ 261, 262. Apples. L. 1920, ch. 610. to the fertilizing value of the material, the manufacturer thereof would have been entitled to an alternative writ of mandamus to have that fact determined. Matter of National Stonemeal Co. v. Wilson (1917), 181 App. Div. 236, 168 N. Y. Supp. 241, affg. 99 Misc. 664, 164 N. Y. Supp. 908. § 261. Definition of standard evaporated apples.-Evaporated apples containing not more than twenty-four per centum of water or fluids as determined by drying for four hours at the temperature of boiling water shall be considered standard evaporated apples for the purposes of this article. (Amended by L. 1919, ch. 219.) § 262. Standard grades of apples.-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 per centum of good color for the variety. (Subd. amended by L. 1920, ch. 610, in effect Aug. 1, 1920.) Fourth: "New York standard C grade" shall consist of apples of one variety which are well matured, hand-picked, properly packed, practically normal shape, and the apples constituting the face end shall be an average of the apples contained in the package. Such apples must comply with the markings of the barrel which shall include the variety, packer's name and address, the minimum size and the words "New York standard C grade." (Subd. amended by L. 1920, ch. 610, in effect Aug. 1, 1920.) Fifth "Unclassified." Applies not conforming to the foregoing specifications of grade, or, if conforming, are not branded in accordance therewith, shall be classed as "unclassified" 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, and the apples constituting the face end shall be an average of the apples contained in the package. (Subd. amended by L. 1920, ch. 610, in effect Aug. 1, 1920. (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. Closed packages containing apples that have been stenciled or branded as one of the standard grades or classes for apples grown in New York state shall be presumed to be apples grown within the state of New York. (Subd. amended by L. 1919, ch. 233.) Misbranding or adulterating apples; conviction not prerequisite to suit for penalty. -Subdivision one of this section as in force January 19, 1916, providing in sub L. 1918, ch. 215. State fair; acquisition of real property. §§ 263, 295-297. stance that one who misbrands or adulterates apples shall "upon conviction thereof" forfeit certain penalties to the people of the State, does not require a conviction in a criminal case as a prerequisite to a suit for the penalty. The words "upon conviction" refer to the decision or verdict of a jury in a civil action to recover the penalty. People v. Wilson (1917), 179 App. Div. 301, 166 N. Y. Supp. 329 § 263. Sale of fruit-bearing trees. This section and section 264 are not retroactive in character, and relate only to the sale of fruit-bearing trees made after said sections became law and to remedies and rights of action growing out of such sales. Woodworth v. Rice Bros. Co. (1920), 110 Misc. 158, 179 N. Y. Supp. 722. § 295. Acquisition of additional real property.-The state fair commission may acquire additional real property for state fair purposes whenever money shall be appropriated by the legislature therefor. Such commission shall cause a map to be made of the real property which it shall determine to take, showing the boundaries thereof and the name of the owner or reputed owner thereof as nearly as the same can be ascertained, and shall file such map, certified by the commission, in the office of the secretary of state and of the county clerk of the county in which such real property is located. From the time of the filing of such map the property therein specified shall become and be the property of the state of New York and shall be applicable to state fair purposes as provided by this article. (Added by L. 1918, ch. 215.) § 296. Notice of intention to take.-Within ten days after filing such map the state fair commission shall cause to be published once in each week for three successive weeks, in two newspapers published in the county in which such real property is located, a notice that such map has been so filed and that the state fair commission intends to take and appropriate real property shown on such map and described in such notice, and acquire title thereto and hold the same in trust for the people of the state of New York, and that such commission intends to apply to the supreme court in the judicial district in which such real property is located, not more than thirty days after the first publication of such notice, for the appointment of three freeholders, residents of the state of New York, to act as commissioners of appraisal, to ascertain and report the just compensation to be paid to the persons or corporations owning or having an interest in such real property. (Added by L. 1918, ch. 215.) § 297. Appointment of commissioners of appraisement. On the day designated in such notice or some other day to be named by the court, such court shall hear the application of the state fair commission, and shall appoint three disinterested persons, freeholders and residents of the state of New York, commissioners of appraisement. If any commissioner of appraisement shall decline to serve the court may, on application of the state fair commission, upon notice of such vacancy and application to be §§ 298-299-a. State fair; acquisition of real property. published at least once in a newspaper in the county in property so to be taken and acquired is situated, appoin place. (Added by L. 1918, ch. 215.) L. 1918, ch. 215. which the rea! another in his § 298. Oath of appraisement; notice of meeting.-The commissioners of appraisement so appointed shall, before they enter upon their duties, take the constitutional oath of office. They shall cause to be published once in each week for at least two successive weeks in a newspaper printed and published in the county in which the real property to be appraised is situated, a notice of their appointment, containing a brief description of the purposes for which they have been appointed, and requiring all persons and parties interested in the real property so taken, and having any claim or demand on account thereof to present the same to them duly verified, with such affidavits or other proof as the owner or claimant may desire, within twenty days after the date of the first publication of such notice, and stating a time and place after the expiration of such days when such parties and persons shall be heard in relation thereto by such commissioners of appraisement. At the time and place fixed for such notice or at any such further or other times and places as such commissioners may appoint, such commissioners shall hear such owners and examine the proof of such claimant or claimants, or such additional proof and allegations as may then be offered by such owners or on behalf of the state fair commission. They shall give notice of the time and place of their meeting to view such real property, hereinafter provided for, by publishing the same in a newspaper printed and published in the county in which the real property so taken is situated. (Added by L. 1918, ch. 215.) § 299. Duties of appraisers; report. The commissioners of appraisement shall together view such property and shall receive any legal evidence as to the compensation that shall be made therefor, and may adjourn from time to time. They shall ascertain and award to the owner or to the respective owners of the property to be taken, and to all persons and corporations interested therein, such compensation therefor as in their opinion shall be just and proper and in fixing the amount of such compensation such commissioners shall not make any allowance or deduction on account of benefits. The report of the commissioners of appraisement, signed by a majority of such commissioners, shall be filed in the office of the clerk of the county in which the real property taken is situated, as soon as completed, and such report shall be made and filed within three months from the time of their appointment. Their oaths of qualifications and their minutes of testimony taken by them, if any, shall be attached to and filed with such report and form a part thereof. (Added by L. 1918, ch. 215.) § 299-a. Notice of application to confirm report.-After the report of such commissioners of appraisement shall be so filed the state fair commis |