1918.] Memorandum, per POUND, J. [225 N. Y.] to a like length the power to imprison. We leave that question open. That there may be reasonable regulation of a right is no argument in favor of regulations that are extravagant. Exceptional principles apply to callings of such a nature that one may be excluded from them altogether. Of these it may be true that by engaging in them at all, one accepts the accompanying conditions (Miller v. Strahl, 239 U. S. 426; People v. Rosenheimer, 209 N. Y. 115; People v. Roby, 52 Mich. 577). We speak rather of callings pursued of common right, where restrictions must be reasonable (People v. Beakes Dairy Co., 222 N. Y. 416, 427). This case does not require us to decide that life or liberty may be forfeited without tinge of personal fault through the acts or omissions of others (Comm. v. Stevens, 153 Mass. 421, 424, 425; Comm. v. Morgan, 107 Mass. 199, 203; Comm. v. Riley, 196 Mass. 60, 62; Mousell Bros. v. London & N. W. Ry. Co., 1917, 2 K. B. 836, 843, 844; The Queen v. Tolson, supra, at p. 185). The statute is not void as a whole though some of its penalties may be excessive. The good is to be severed from the bad. The valid penalties remain. Our conclusion is that there is some evidence of the defendant's negligence in failing for six months to discover and prevent the employment of this child; that the omission to discover and prevent was a sufferance of the work; and that for the resulting violation of the statute, a fine was properly imposed. The judgment should be affirmed. POUND, J. (concurring). Section 162 of the Labor Law (Cons. Laws, chap. 31) imposes within its limits an absolute prohibition of child labor. The child whose job is casual, who has no continuity of employment, may not be said to "work in or in connection with the business," as the word implies some regularity of occupation. The ques [225 N. Y.] Memorandum, per CRANE, J. [Dec., tion of personal liability of directors seems to be answered by our decision in People v. Taylor (192 N. Y. 398). They are not within the statute except as they act individually. Two objections to the exclusion of the elements of knowledge and due diligence are thus disposed of. On the question whether an employer, acting without personal fault, may be imprisoned for the act or omission of his servant, I think that we should preserve entire neutrality at this time. It may be argued that the preliminary act of the principal from which criminal liability may flow is the engaging in a business in which child labor is prohibited; that the offense is established when it is shown that the child worked in or in connection with the business and that the element of personal fault is thus present. (Com. v. Smith, 166 Mass. 370, 375, 376; People v. Roby, 52 Mich. 577; Loch v. State, 75 Ga. 258.) The employment of children is as much under the ban as is the sale of liquor to them and for the same considerations of public welfare. This point is probably sufficiently saved in the prevailing opinion. CRANE, J. (concurring). I concur in the opinion of Judge CARDOZo, but I do not think that we should leave the question of punishment by imprisonment open for further discussion. The matter is here, in my judgment, for determination. The defendant has been charged with a misdemeanor in having violated the provisions of section 162 of article 12 of the Labor Law, being chapter 36 of the Laws of 1909, which read: No child under the age of fourteen years shall be employed or permitted to work in or in connection with any mercantile or other business or establishment specified in the preceding section." The defendant maintained a milk route for distributing 1918.] Memorandum, per CRANE, J. [225 N. Y.] milk and came within the provisions of this section. It apparently did everything that could be done to comply with this law. The drivers of its wagons were sent out early in the morning to various parts of the city, not returning until midday. The defendant not only established rules against the employment of boys under fourteen by the drivers but employed inspectors to follow them upon their routes and see that the instructions were obeyed. The conviction of the defendant has proceeded upon the theory that it is guilty for an act of its driver violating this law irrespective of its knowledge or consent and the exercise of every effort that could be made to prevent it. It is said that the law having been violated by its servant the defendant is liable and that there can be no defense. I recognize that this is the law regarding many police regulations and statutes creating minor offenses and that there is a distinction between acts mala prohibita and mala in se, but I do not believe that the legislature is unlimited in its power to make acts mala prohibita with the result that an employer can be imprisoned for the acts of his servant. (People ex rel. Cossey v. Grout, 179 N. Y. 417, at p. 433.) Nearly all the cases upon this subject have been those fixing a penalty to be recovered either in a civil or a criminal proceeding. Others have been prosecutions for a misdemeanor such as in this case resulting in a fine. To this extent I concede that the employer is liable irrespective of his knowledge or negligence, but when an employer may be prosecuted as for a crime to which there is affixed a penalty of imprisonment for an act which he in no way can prevent, we are stretching the law regarding acts mala prohibita beyond its legal limitation. (Chicago, B. & Q. Ry. v. United States, 220 U. S. 559.) While this case has to do with a corporation which can only be fined yet the law is equally applicable to an [225 N. Y.] Memorandum, per CRANE, J. [Dec., individual. Section 1275 of the Penal Law provides that for a second or third violation of the Labor Law imprisonment may be inflicted. An individual, therefore, carries on the milk business at the risk of being imprisoned for acts over which he has absolutely no control. The liquor cases which are numerous are hardly pertinent. Such business may be prohibited altogether but not so with the milk trade. It can be said that the situation which I have here stated is not presented by this case as the defendant is a corporation or, as this is the first offense, it can only result in a fine. If the legislature is limited in its power to punish acts mala prohibita, this case, I think, presents the matter in such a way that we should say so. The statute defines the crime and annexes a penalty which is a fine for the first offense or possible imprisonment for the second offense. The argument in court and upon the briefs has been that the legislature is unlimited in dealing with acts mala prohibita. Some of the cases to which we have been referred, and the opinion below in this case, indicate that as long as an act is prohibited by a statute and is not malum in se, persons may be punished for the acts of their agents upon the theory of respondeat superior or else are charged by law with knowledge which they could not otherwise possess. Strictly speaking the doctrine of principal and agent has no place in the criminal law. (People v. McLaughlin, 150 N. Y. 365-385.) We should not leave it for a trial judge, when the case arises, to impose a fine instead of imprisonment in order to avoid a question of legality. It is unnecessary to state that that which constitutes guilt in a corporation would also be the same for the individual under like circumstances. In brief I spell out the law fixing offenses under the police power of the legislature and known as acts mala prohibita to be this: 1918.] Statement of case. [225 N. Y.] 1. The defendant is liable for what he directs or authorizes. 2. He is liable for that which is done with his knowledge, although not his consent, and knowledge may be proved by circumstantial evidence. 3. He may be made liable for penalties or fines in the nature of penalties to be recovered in civil or criminal actions, for acts committed by his servants without his knowledge or consent and against his direct prohibition. As is stated in some of the cases he acts in these matters through his servants at his peril. These are all made minor offenses and hardly rise to the rank of crimes. But when this third class are made crimes punishable by imprisonment, I believe the legislature exceeds its power. HISCOCK, Ch. J., COLLIN, CUDDEBACK and ANDREWS, JJ., concur with CARDOZO, J.; POUND and CRANE, JJ., each in memorandum, also concur. Judgment affirmed. WALDO D. PUTNAM, Respondent, v. INTERIOR METAL MANUFACTURING COMPANY, Appellant. Warranty when error to exclude evidence tending to show breach of warranty. Where in an action to recover for goods sold the answer sets up a counterclaim alleging breach of warranty and the reply does not deny that there was such a warranty it is error to exclude evidence which tended to show that the articles furnished were not fit and proper for the purposes intended. Putnam v. Interior Metal Mfg. Co., 173 App. Div. 967, reversed. (Submitted November 19, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, |