Third Department, November, 1911. As the statute provides that "Any person delivering milk to any railway station to be shipped to any city * * * [Vol. 147. shall be deemed to expose or offer the same for sale," the question as to whether it would be a violation of law for a resident of this State to agree with a resident of another State to deliver and sell to him in that State adulterated milk produced here, does not arise. A cumulative recovery for violations of a statute will be allowed where the legislative intent is clearly expressed. Where the statute provides that "the sale of each one of several packages shall constitute a separate violation," and imposes a penalty for each violation, a separate penalty may be recovered for each can of adulterated milk in the shipment. APPEAL by the defendants, Nathan Abramson and another, from a judgment of the Supreme Court in favor of the plain. tiff, entered in the office of the clerk of the county of Delaware on the 25th day of February, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 21st day of February, 1911, denying the defendants' motion for a new trial made upon the minutes. C. L. Andrus, for the appellants. Charles R. O'Connor, for the respondent. SEWELL, J: This action was brought to recover a judgment for penalties for selling adulterated milk contrary to the provisions of section 22 of the former Agricultural Law (Gen. Laws, chap. 33 [Laws of 1893, chap. 338], as amd. by Laws of 1907, chap. 241), which is now section 32 of the present Agricultural Law (Consol. Laws, chap. 1; Laws of 1909, chap. 9). The defendants operated a creamery at Dunraven in the town of Middletown, Delaware county, and during the month of October, 1908, sold to G. Kotcher and J. Breadstone, wholesale milk dealers, doing business in the city of Brooklyn and New York city, 336 cans of milk of forty quarts each. The milk was adulterated by the defendants before it was shipped by taking from each can three and one-half quarts of cream. The defendants claimed and gave evidence tending to show that it was understood and agreed that the milk should be sold only in the State of New Jersey, and that the milk was up to App. Div.] Third Department, November, 1911. the standard in that State, but it is undisputed that the contract was made in New York, that the milk was to be shipped on board the cars of the Delaware and Eastern Railway Company at Dunraven, and that the purchasers were to pay the freight. It was also undisputed that each can was properly marked with the name of the purchaser, that they were transported to Weehawken, and, when they arrived there, they were taken by the purchasers to the city of New York or Brooklyn, where they were sold or otherwise disposed of. It is clear, I think, that the defendants delivered the milk to the carrier with the intention to vest the title in the purchasers, and that their title was then complete; that the purchaser could thereafter transport it to any point in or without the State; that it was at their risk, and they were liable to pay for it, although it should be lost. It is also to be observed that the statute in question expressly provides that "Any person delivering milk to any butter or cheese factory, condensary, milk gathering station or railway station to be shipped to any city, town or village shall be deemed to expose or offer the same for sale whether the said milk is delivered or consigned to himself or another." This being so, the question whether it would be a violation of the provisions of the Agricultural Law for a resident of this State to agree with a resident of a foreign State to deliver and sell him in such foreign State adulterated or unwholesome milk is not in the case. The only other question presented is whether the trial court correctly held that the sale of each can was a violation of the statute for which a penalty could be recovered. The statute in question provides that "the sale of each one of several packages shall constitute a separate violation," and imposes a penalty for each violation of the law. (See Gen. Laws, chap. 33 [Laws of 1893, chap. 338], § 37, as amd. by Laws of 1901, chap. 656; now Consol. Laws, chap. 1 [Laws of 1909, chap. 9], $ 52.) From this language I think it is evident that the Legislature intended that there should be cumulative recoveries. I do not see how it could make that meaning plainer. This conclusion is not in conflict with the previous decision of this court in United States Condensed Third Department, November, 1911. [Vol. 147. Milk Co. v. Smith (116 App. Div. 15). The recovery in that case was under a statute providing a penalty for buying or selling or having in possession marked milk cans belonging to another and allowing a recovery of a penalty "for every such violation." (Laws of 1896, chap. 376, § 29, as amd. by Laws of 1902, chap. 482.) It was there held that the language of the statute limited the recovery in any action to each violation and that the possession of one can or more than one can was a single violation of the statute. It is well settled that a cumulative recovery will be allowed where the legislative intent in that respect appears in the language of the statute. (Suydam v. Smith, 52 N. Y. 383; Grover v. Morris, 73 id. 473; Griffin v. Interurban St. R. Co., 179 id. 438; 180 id. 538; People v. Spencer, 201 id. 105.) It follows that the judgment and order appealed from should be affirmed, with costs. All concurred. Judgment unanimously affirmed, with costs. In the Matter of the Judicial Settlement of the Account of JOHN R. DE VANY, as Executor, etc., of HARRY S. GORDON, Deceased, Appellant. CARLO GORDON and EDITH GORDON, Respondents Third Department, November 29, 1911. Decedent's estate-power of surrogate executor - accounting – profit made by discounting legacy - failure of legatee to object. A surrogate may on his own motion require an executor or administrator to account, and, after obtaining jurisdiction of the person, may examine and settle the account rendered. The passing of an executor's account is a judicial act even where no objections are made. An executor or other trustee is prohibited from so dealing with the trust property as to gain any advantage directly or indirectly for himself beyond his lawful compensation. An executor may not make any profit for himself by purchasing a legacy at a discount, and, if he does, it inures to the benefit of the estate whether the legatee complains or not. App. Div.] Third Department, November, 1911. Where an executor advanced $2,000 on a $2,500 legacy upon an understanding with the legatee that he should have the balance as a consideration for the advance, his accounts will be surcharged with the profit he made less six per cent interest upon the money advanced. This is so although the legatee did not complain and there was no fraud in the transaction. Such a transaction cannot be sustained as a gift from the legatee to the executor, although he handed her the balance of the legacy and straightway received it back. BETTS, J., dissented, with opinion. APPEAL by John R. De Vany, as executor, etc., from so much of a decree of the Surrogate's Court of the county of Ulster, entered in said Surrogate's Court on the 14th day of November, 1910, as surcharges the account of the executor with the sum of $381. John J. Linson and James Jenkins, for the appellant. Howard Chipp, for the respondents. SEWELL, J.: Harry S. Gordon died leaving a will which was admitted to probate by the surrogate of Ulster county December 15, 1908, and on that day letters testamentary were issued to the appellant, the executor therein named. By the 5th clause of the will Edith R. Gordon was bequeathed $2,500. This legacy was subject to an inheritance tax of $118.70. On the 15th day of May, 1909, the executor advanced to the legatee $1,700 of his own money and took her receipt for $300, the price of a colt belonging to the estate purchased either by her or her husband. The executor testified that the legatee at that time offered to take $2,000 for the legacy, and that sometime thereafter she executed and delivered to him an assignment in blank of the legacy, and a power of attorney, authorizing him to pledge or transfer it for the sum of $2,000; that he did not assign or pledge the legacy, but returned the papers to her on the 20th day of January, 1910, when he went to Pope's Creek, Md., where the legatee resided, and paid her the sum of $381.25, the balance of her legacy, and took her release. The surrogate found that at that time he had paid her $381.25 in cash, and that "Edith Gordon immediately handed back to said Third Department, November, 1911. [Vol. 147. executor $381.00 of the same moneys so paid her, which said executor retained and still retains," and "That said moneys were so paid to and received and retained by said executor because of his having advanced said legatee said sum of $2,000 for her said legacy." As a conclusion of law the surrogate found that the sum of $381 retained by the executor belonged to the estate and that he should be charged with that sum in the decree. The executor contends that if he is in the wrong in retain ing the moneys, the wrong is against the legatee, and that in the absence of an objection by her the surrogate was not called upon to decide that question or to surcharge his account with the amount retained by him. There is no statutory requirement or general rule requiring the filing of specific objection by a party contesting an account. The surrogate has the power on his own motion, with or with out a petition or suggestion from any one, to require a judicial settlement of the accounts of an executor or administrator, and after obtaining jurisdiction of the person, to proceed and examine into the account and to settle and adjust the same. In Wigand v. Dejonge (8 Abb. N. C. 260) it was held that the act of passing the account of an executor is a judicial act on the part of the surrogate, even when no objections are made to the account, and in doing so he exercises that power over trusts formerly exercised by the old Court of Chancery, and where infants are interested in the accounts he is bound to investigate and take charge of their interests as their ultimate guardian. The only question presented, therefore, is whether or not the account should be surcharged with the moneys which were paid or delivered by the executor to the legatee, and immediately thereafter returned by her to him. The appellant has cited cases which support his contention, that a voluntary gift is as much protected by law as is a transfer for a full consideration, and that it can be assailed only by parties interested in a court of equity for fraud, undue influences or unfairness. This is, without doubt, the rule, but it is not applicable to the present case, because there was no evidence tending to show that the transaction between the legatee |