City of New York v. Biffle — 91 N.Y.S. 737

Majority

p. 737

CITY OF NEW YORK v. BIFFLE.

(Supreme Court, Appellate Term.

January 17, 1905.)

Headnote

1. Dealers Using Incorrect Scales—Liability for Penalty.

Under the ordinance imposing a penalty on a dealer for using incorrect scales in selling commodities it is no defense that the scales got out of balance because of the pans getting mixed up after being cleaned.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by the city of New York against Henry BifHe. From a judgment for defendant, plaintiff appeals.

Reversed.

Argued before SCOTT, MacI,EAN, and DAVIS, JJ.

John J. Delany (Herman Stiefel, of counsel), for appellant.

Leopold W. Harburger, for respondent

It sufficiently appeared by the defendant’s own admission that the incorrect scales were in general use by him in selling commodities, and that they were actually in use on the day of their testing. It also appeared without contradiction that they were incorrect. His attempted explanation that they got out of balance because the wrong pans were put on them after cleaning does not help him. It was his business to see that the right pans were put on the right scales. The purpose of the ordinance is to protect purchasers against underweight. A purchaser will be just as effectively cheated by a light scale, whether the result is produced by imperfection in the scale, or by some tampering with it, or by mixing up the pans. The point is that the law requires the dealer to use correct scales, and if he uses incorrect ones, no matter for what reason, he is liable to the penalty.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.